Preamble

The House met at half-past Two o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

PRIVATE BUSINESS

BOLTON CORPORATION BILL (By Order)

Order for Second Reading read.

Hon. Members: Object.

To be read a Second time tomorrow.

BRITISH WATERWAYS BILL (By Order)

Order for Second Reading read.

Hon. Members: Object.

To be read a Second time tomorrow.

CUMBERLAND RIVER AUTHORITY BILL (By Order)

Order for Second Reading read.

Hon. Members: Object.

To be read a Second time tomorrow.

LONDON TRANSPORT BILL (By Order)

Order for Second Reading read.

Hon. Members: Object.

To be read a Second time tomorrow.

Oral Answers to Questions — DEFENCE

Overseas Areas (Training)

Mr. Lane: asked the Secretary of State for Defence which areas overseas will be available for the training of British land, sea and air forces after 1971.

The Secretary of State for Defence (Mr. Denis Healey): Information about training areas and facilities used by the forces will, as usual, be given in the Statement on the Defence Estimates to be published later this month. It would not be possible to forecast precisely which of these will be in use at any particular time in the future, but I have no reason to believe that we shall not be able to continue to satisfy our requirements.

Mr. Lane: In view of the changed situation in Libya, would the right hon. Gentleman acknowledge the great advantages of Sharjah in the Persian Gulf and not close his mind obstinately to the possibility of retaining some facilities in that area?

Mr. Healey: I do not close my mind to any sensible possibility, but when we are considering facilities to replace those which we shall cease to have in Libya, the question of distance from our forces in Europe will be a factor.

Rum

Mr. Lane: asked the Secretary of State for Defence whether he will give an undertaking that rum will continue to be issued in the Royal Navy throughout 1970.

The Under-Secretary of State for Defence for the Royal Navy (Dr. David Owen): No, Sir.

Mr. Lane: Is the hon. Gentleman aware that, despite what he said last week, some of us who served in the Navy both as ratings and as officers regard this decision as a psychological blunder? If the worry is intoxication, would not a better solution be to continue the tot but to reduce its volume?

Dr. Owen: The possibility of reducing the volume was considered but that, I think, would be the worst of all worlds.


No hon. Member who was present during the Adjournment debate on this subject could have failed to notice the differences of opinion on this issue.

Mr. Wellbeloved: Would my hon. Friend take note that since that Adjournment debate I have received a large volume of letters making it clear that the lower deck is not convinced by his comments or by the unsubstantiated facts which he purported to put to the House? Will he bear in mind that there will be continuing trouble in the Fleet over this matter until he reverses this decision?

Dr. Owen: They are certainly not unsubstantiated facts. Indeed, they are carefully documented, and I am in the process of answering numerous questions from my hon. Friend to show that they are substantiated.

Libya

Mr. Marten: asked the Secretary of State for Defence if he will make a statement on the latest situation of the British defence facilities in Libya.

Mr. Healey: I have nothing to add to the information given by my right hon. Friend the Foreign and Commonwealth Secretary on 2nd February.—[Vol. 795, c. 12–13.]

Mr. Marten: How much equipment and installation shall we be leaving behind? What is its value? Would the right hon. Gentleman answer this supplementary question and not simply say that it raises matters contained in Questions Nos. 37 and 50 on today's Order Paper?

Mr. Healey: While my answer would inevitably cover a great deal of the same ground, I can tell the hon. Gentleman that we shall not be leaving anything behind which is movable.

Mr. Shinwell: Has my right hon. Friend seen a report in the Press to the effect that a substantial number of our forces who are to leave Libya will be stationed in the Northern Territory of Australia? Is there any truth in that report—although it might be a desirable thing to do?

Mr. Healey: There is no truth that the Government have taken any decision on this matter. That is pure speculation.

Libya

Mr. Henig: asked the Secretary of State for Defence what is the value of military installations and supplies being left behind in Libya; and what proportion is being paid for by the Libyan Government.

Mr. Shinwell: asked the Secretary of State for Defence what was the original cost and present value of British equipment, stores and installations in Libya; what proportion will be left; and on what financial terms.

Mr. Healey: Much of the permanent accommodation occupied by British forces in Libya was Italian-built, and I regret that I cannot give an original cost figure. British investment since 1953 including non-permanent buildings has been about £3.6 million. We are withdrawing all those non-permanent buildings which can be economically dismantled; permanent buildings will revert to Libya under treaty arrangements.
We also intend to withdraw all equipment and stores apart perhaps from some non-warlike stores, the recovery of which is not essential and which will be offered for sale to the Libyan Government and on the open market. The programme for withdrawal is going well.

Mr. Henig: That is a most satisfactory Answer. But could my right hon. Friend say, if all these decisions have been made, precisely what is the object of the talks apparently going on between this country and Libya, which have been said in the Press to be about further defence arrangements? Does that mean that the British Government would like, if it can be agreed in these talks, to sell further weapons to Libya? If so, what weapons will they be, and will the House be informed before any agreement emerges?

Mr. Healey: That is a totally different question, and it was dealt with in Answers by my right hon. Friend the Foreign and Commonwealth Secretary on Monday.

Mr. Shinwell: But, as it happens, a bargain is being made with the Libyan Government. There is a deal on. Should not we have all the information about this arrangement with the Libyan Government? Is it so simple—leaving some


equipment behind, taking some equipment away—that it does not cost Great Britain a great deal? Does my right hon. Friend agree that we are entitled to more information about these negotiations.

Mr. Healey: It is never the custom to give information about negotiations while they are going on, but when they are concluded such information as can properly be given to the House will be given to the House.

Mr. Shinwell: Too late.

Sir G. Nabarro: Is it not a fact that in this instance there are quite extraordinary circumstances, that the Libyan Government were guilty of a breach of their agreement with us and, after such breach, of handing over all the former British contracts for defence equipment to the French?

Mr. Healey: With respect, that is not a question for me.

Sir G. Nabarro: It is true, whether it is a question for the right hon. Gentleman or not.

Multi-rôle Combat Aircraft Proposal

Mr. Marten: asked the Secretary of State for Defence if he will make a statement on progress with the multi-rôle combat aircraft proposal.

Mr. Healey: Work is proceeding in accordance with the timetable I gave in my statement on 14th May, 1969. It is expected that within the next three months work will have been completed both on the project definition phase and on the evaluation needed as a basis for further decisions.—[Vol. 783, c. 1411–17.]

Mr. Marten: Does the Secretary of State recall that on 3rd December, while he was away, his colleague refused to give the House all the details about the M.R.C.A.? Is he aware that on 11th December all those details appeared in Flight International from a Press conference which had been given the previous week by the managing director of Panavia? May we be told what is going on?

Mr. Healey: If the hon. Gentleman will put down specific Questions, I will seek to answer them.

Mr. Allaun: Is my right hon. Friend aware that the magazine Flight Estimates shows the total programme as £2,110 million? Can my hon. Friend at least tell us whether there is any ceiling to the British contribution? Is it more than the £650 million estimated by the defence correspondents of The Times, the Daily Telegraph and The Guardian?

Mr. Healey: I cannot give financial details—[HON.MEMBERS: "Why not?"] As I have already explained to the House, it is not customary to do so. And it is no good the hon. Member for Banbury (Mr. Marten) waving documents at me which are quite unofficial. In any case, total programme costs depend very much on the numbers of aircraft which are ultimately ordered and the unit price of each, and that has not yet been decided.

Mr. Corfield: The managing director is responsible to the Governments which have participated, and if he can give information, surely the Secretary of State can give the information to the House?

Hon. Members: Answer.

Mr. Marten: On a point of order, Mr. Speaker. In view of the unsatisfactory nature of the Minister's reply, I beg to given notice that I shall seek to raise the subject on the Adjournment at the earliest moment.

Territorial Army

Mr. Allason: asked the Secretary of State for Defence what are the numbers on the establishment of Territorial Army non-combatant arms; and what are the latest numbers recruited.

The Under-Secretary of State for Defence for the Army (Mr. Ivor Richard): The strength of the Territorial and Army Volunteer Reserve administrative and logistic units, at 30th November, 1969, was 18,152 against an establishment of 30,100.

Mr. Allason: Is not this a very serious deficiency? What steps is the Minister taking to put it right? How can he expect the Territorial Army to function if it is unbalanced?

Mr. Richard: I do not for a moment accept the hon. Gentleman's views on this subject. The Army has other reserves


whose rôle is to provide individual reinforcements to make good precisely this kind of manning shortfall. I would remind the hon. Gentleman that recruiting to the TAVR has increased in the last year by 2,000 in precisely these administrative and logistic units.

Mr. Ramsden: Do these grave shortages extend to the administrative-sponsored units which used to form part of the A.E.R., and which were previously well recruited? And may we have an assurance that reserves exist, whether in the Army General Reserve or elsewhere, to make good deficiencies in the T.A.V.R.?

Mr. Richard: On the second half of the right hon. Gentleman's supplementary question, I can give that assurance. On the first part, the Question was taken to relate to strength and establishment of administrative and logistic units; that is, excluding "teeth arm" units, and those from Group B, University O.T.C.s.

Royal Air Force Station, Bovingdon

Mr. Allason: asked the Secretary of State for Defence what is his estimate of the value of the damage done to Service installations at Bovingdon since the closing of the Royal Air Force station.

The Minister of Defence for Administration (Mr. Roy Hattersley): About £200.

Mr. Allason: Is the Minister aware that years of neglect and of vandalism at the old United States Army Air Force base at Bovingdon has led to its becoming virtually completely destroyed? Will he not at least try to save the installations which are now left there?

Mr. Hattersley: Those installations which are worth saving in their entirety—the gymnasium, about which the hon. Gentleman has written, is one—we certainly want to save, but much of the land needs to be sold, and many of the building on it are not fit to be saved even now.

Armed Forces (Terms and Conditions)

Mr. Gwilym Roberts: asked the Secretary of State for Defence if he will initiate a study into discrimination in liv-

ing conditions, catering arrangements, leisure facilities and conditions generally in the Army, the Royal Navy, and the Royal Air Force as between commissioned officers and other ranks; if he will take steps to remove this discrimination; and if he will make a statement.

Mr. Wellbeloved: asked the Secretary of State for Defence whether he is aware of the detrimental effect on re-engagement caused by discrimination in living conditions, catering arrangements, leisure facilities and conditions generally in the Army, the Royal Navy, and the Royal Air Force as between commissioned officers and other ranks; if he will take steps to remove this discrimination; and if he will make a statement.

Mr. Hattersley: I do not regard discrimination as an appropriate word by which to describe the differing terms and conditions of service which apply to the various ranks within the Armed Forces. All terms and conditions of service are under continuous review.

Mr. Roberts: Will not my hon Friend agree that one of our aims must be to reduce the class structure of our society, which is seen at its height in the Army; and that one method of doing this would be to allow people to mess together? If he does not believe that this discrimination exists, will he tell the House what proportion of the entry to Sandhurst comes from public schools, and what proportion of Guards officers have private incomes?

Mr. Hattersley: I do, in general, subscribe to the principle with which my hon. Friend began his supplementary question, but perhaps I may give him two examples to illustrate my reply. He was told in the House last Wednesday that 40 per cent. of the officers in the Royal Navy were promoted from the lower deck. Any comparable figure in a large industrial firm would be something in which we should all rejoice. The proportion of officers coming from public schools is about one in three, which is much less than the figure which my hon. Friend quoted in the newspapers—indeed, about 50 per cent. less.

Mr. Goodhew: Would the Minister like to post his hon. Friend the Member for Bedfordshire, South (Mr. Gwilym Roberts) to an R.A.F. station for a few


weeks, where he would learn that the catering arrangements for the men there are better than those for the officers?

Mr. Wellbeloved: rose—

Mr. Speaker: Mr. Gwilym Roberts—No. 11.

Mr. Wellbeloved: On a point of order, Mr. Speaker.

Mr. Speaker: Order. Mr. Speaker does not automatically call Questions which appear later on the Order Paper.

Mr. Wellbeloved: On a point of order, Mr. Speaker. The Minister said that he was taking Question No. 71 with this Question. Does it mean that when the Minister directly tells the House that with one Question he is taking a certain other Question, Mr. Speaker can decline to give the hon. Member with that other Question the right to put a supplementary question?

Mr. Speaker: It means exactly that. Mr. Roberts.

Forces (Trade Union Movement)

Mr. Gwilym Roberts: asked the Secretary of State for Defence if he will take steps to amend Queen's Regulation 675 to enable members of the Armed Forces to take part in the trade union movement; and if he will seek to extend the methods by which rank-and-file military opinion can effectively play a part in shaping day-to-day decisions and conditions of military service generally.

Mr. Hattersley: No, Sir. Service men are not forbidden to belong to trade unions at present provided their obligations are limited to the payment of subscriptions, and many do so with resettlement in mind.

Mr. Roberts: Would not my hon. Friend agree that there is a need to democratise the forces, so that people feel that they are something more than just a number? Does he not think that the first step would be to introduce some reasonable level of effective consultation and also to allow people to play some active part in a trade union branch, and not to have the hypocrisy which exists at the present time?

Mr. Hattersley: I certainly want members of the Armed Forces to feel that

they are more than a mere number, and I have no doubt that they feel that now. The second Report of the N.B.P.I. remarked with fervour and favour on the ability which officers in the Ministry of Defence showed in representing the Armed Forces. That seems to me to be a wholly good thing, and I believe that it will continue.

Rear-Admiral Morgan-Giles: The Minister will remember his right hon. Friend saying that he was, in effect, both a Minister and the trade union representative for the men in the Forces. Will he assure us that his right hon. Friend will make sure that the Service man does not fall behind in the free-for-all of the present civilian wage race?

Mr. Hattersley: If that is a comment on payment in the Armed Forces I am sure that we shall all be very anxious to secure it. I have read with interest things in the Press in the last few days, some of which may be reported to this House if in the end they turn out to be true.

Nigeria (Supply of Arms)

Mr. Pardoe: asked the Secretary of State for Defence (1) what is the value of all arms sales to Nigeria during each of the past five years; and what proportion of total arms sales this is;

(2) if he will estimate the total value of all arms sold by foreign countries including Great Britain to Nigeria in the past year.

Mr. Healey: As the hon. Member knows, it is not the practice to disclose detailed information about sales of defence equipment to individual countries. I am not responsible for what foreign countries do.

Mr. Pardoe: While not at all thanking the Secretary of State for Defence for that most unhelpful reply, may I ask him how his right hon. Friend the Foreign Secretary came to the figure which he divulged to the House on 9th December, 1969, of British sales being 15 per cent. in value? Since we have been given that figure, is not the House entitled to the basic figures on which it was calculated?

Mr. Healey: Wounded as I am by the hon. Member's ingratitude, I am afraid


that I must tell him that I am not responsible for the processes by which my right hon. Friend reaches any conclusions which he presents to the House, but I have total confidence in his rectitude and accuracy.

Mr. Henig: Will not the Secretary of State reconsider this practice? Is it not the case that if the British Government are pursuing a particular policy they ought not to feel that there is anything to hide? In view of certain allegations which have recently been made, would it not be better simply to tell the House exactly what the truth is?

Mr. Healey: No, Sir. I do not think that it would.

Mr. Michael Foot: Will not the Secretary of State for Defence reconsider this whole question of the Government's refusal to give details of arms sales abroad? Does he not feel that the Government would find it much easier to defend some things they do if they stated the information quite clearly? Would not my right hon. Friend take into account that following the 1956 Suez adventure details were given of arms sales to both Egypt and Israel which had taken plazce previously? Will he not, therefore, reconsider the whole question, and let the House have full details?

Mr. Healey: I will, of course, keep this matter and other matters permanently under review. I accept my hon. Friend's point that it would possibly be very much easier to defend Government policy if I were at liberty to reveal all the facts about these sales, but there are other very strong arguments of policy against doing so, and I think that they must take precedence at the present time.

Sir Ian Orr-Ewing: Will the right hon. Gentleman please not give those figures unless he has an assurance from the U.S.A., Russia and France that they will publish their figures, for otherwise this country will be placed in a most invidious situation?

Mr. Healey: That is one of the considerations of policy which have led me to the conclusions which I have reached.

South African Airfields

Captain W. Elliot: asked the Secretary of State for Defence to what extent

South African airfields are available for use by Royal Air Force aircraft in order to provide air cover for the Royal Navy operating in South African waters.

Mr. Healey: The use of South African airfields by Royal Air Force aircraft for this purpose would be a matter for agreement between the two Governments if the need arose.

Captain Elliot: Is the Secretary of State aware that that Answer seems to imply that he is not certain whether the airfields will be available to us? Would he agree that if they are not available and there are no carriers after 1971, the Royal Navy may not be able to operate in this important strategic area?

Mr. Healey: I would certainly agree that it is possible in any situation to invent hypotheses to provide difficulties, but I see no reason to accept that offered by the hon. and gallant Gentleman. As to carriers, whether keeping a single carrier stationed outside Europe would be possible would depend on other tasks which it had to perform at any particular time.

Mr. Wall: Is it not a fact that under the Simonstown Agreement these airfields would be available to the Royal Navy?

Mr. Healey: No, they are not covered by the Simonstown Agreement.

Forces (Housing)

Mr. Kenneth Lewis: asked the Secretary of State for Defence what is the difference in housing costs resulting from bringing home those members of the services previously serving overseas.

Mr. Hattersley: Members of the Services returning from overseas will be housed in existing barracks and married quarters.

Mr. Lewis: The Minister will be aware that a great deal of rebuilding is going on for the Services. In view of the needs of the civil population and the high cost of housing, will he take into consideration that the cost of rehousing people brought here from abroad may in many cases be more than if they were kept in the places from which they are to come?

Mr. Hattersley: The hon. Member's conclusion is absolutely wrong. On reflection he will see that since the number


coming from abroad is less than the rundown of the forces, their return from overseas stations will not cause any net increase in the building programme. The building programme to which he referred is a general building programme which goes on irrespective of that decision.

Op Macc Proposals (Indonesia)

Mr. Dalyell: asked the Secretary of State for Defence what joint Op Macc proposals he has put to the Indonesian Government.

Mr. Richard: None, Sir. Military Aid to the Civil Community is normally provided only at the request of Governments and other authorities concerned. No such request has been received from Indonesia.

Mr. Dalyell: While it is acknowledged that there must be some kind of training content in any Op Macc operation, last year there were certain proposals which at any rate were acceptable to General Panggabeam, Indonesian Army Commander, and about which the Ministry were informed at the time. Have not these been progress-chased?

Mr. Richard: I know that some general comment was made on this subject matter when my hon. Friend was in Indonesia, but I can only repeat that no specific request for an Op Macc type of operation has been received from Indonesia.

Hon. Members: What is it?

Falkland Islands (Airstrip)

Mr. Dalyell: asked the Secretary of State for Defence if he will consider an Op Macc operation to create an airstrip in the Falkland Islands.

Mr. Richard: I have nothing to add to the reply given by my hon. Friend the Minister of Defence for Administration on 1st December last year.—[Vol. 792, c. 215.]

Mr. Dalyell: The senior echelons of the Ministry of Defence have not gone cold, have they, on operations for civil aid?

Mr. Richard: The senior echelons at the Ministry of Defence neither go cold nor grow hot. My hon. Friend knows full well the kind of conditions under which we should undertake this type of

co-operation and he has been given a great deal of information about the proposal regarding the Falkland Islands.

Mr. Corfield: In spite of the ingenuity of some hon. Members as translators, may we not have Questions written in English?

Hon. Members: Hear, hear.

TAVR

Mr. Wiggins: asked the Secretary of State for Defence when he will make a special investigation into the conditions of pay, work and rewards for Territorial and Army Volunteer Reserve officers on consolidated rates of pay.

Mr. Richard: No, Sir. I see no need for a special investigation. The rates of pay of these officers will be reviewed following the introduction of the new Service pay code. Any adjustment to these rates will take effect from 1st April, 1970.

Mr. Wiggin: Will the Minister bear in mind that very important function of these people in the administration of TAVR and consult commanding officers of these units to see whether their opinions coincide with his?

Mr. Richard: I will certainly bear in mind fully the considerations in the hon. Member's supplementary question.

Five-Country Exercise (Malaysia)

Mr. Wiggin: asked the Secretary of State for Defence what will be the cost of the United Kingdom contribution to the five-country exercise to be held in Malaysia in June.

Mr. Healey: If the exercise was cancelled and no substitute whatever arranged—an unrealistic assumption—the saving would be about £2½ million.

Mr. Wiggin: Would the Secretary of State bear in mind that, while welcoming co-operation with the other four Powers, it would be very questionable to draw lessons from this exercise if the troops arrived seven weeks before the start and the majority of the equipment was drawn from stockpiles in Singapore?

Mr. Healey: I certainly agree that any lessons drawn from the exercise must be contingent on the conditions under which it is carried out.

Sir Ian Orr-Ewing: As the Government's policy is to have a general capability in this area and to carry out extensive exercises from time to time, is it not essential that these stockpiles should be maintained if these commitments are to be honoured?

Mr. Healey: No, Sir, but I should be glad if the hon. Member would state how the Opposition would propose to reinforce these forces in the Far East after 1971 and how large a stockpile they propose to hold for that purpose. [HON.MEMBERS: "Answer"]

Mr. Speaker: Order. Questions must be put to the Government.

Mr. Ramsden: The Secretary of State should realise that a serious point has been raised by my hon. Friend the Member for Hendon, North (Sir Ian Orr-Ewing) — [HON.MEMBERS: "Answer"]—and he should not brush it off.How is the worldwide capability—

Hon. Members: Answer.

Mr. Speaker: Order. Too much heat, not enough light.

Mr. Ramsden: How do the Government propose to implement their undertaking to maintain a worldwide capability in the absence of any arrangements, for example, for acclimatisation which in the past have been held to be vital to such a potential?

Mr. Healey: It is true that in certain conditions troops require to be acclimatised before being put into combat, but that applies equally to reinforcements which the right hon. Member would propose to send out to any forces which he kept in the Far East. There is a problem in this, but I do not think he has a better answer to it than I have.

Polaris Submarines

Rear-Admiral Morgan-Giles: asked the Secretary of State for Defence in what respects the present control by Her Majesty's Government over Great Britain's Polaris submarines and their assignment to the North Atlantic Treaty Organisation differs from the situation agreed in 1962 and published in paragraphs 6 and 9 of the White Paper, Bahamas Meetings, Command Paper No. 1915.

Mr. Healey: Her Majesty's Government's control of the Polaris force and its commitment to N.A.T.O. a re fully in accordance with the Nassau Agreement.

Rear-Admiral Morgan-Giles: Have the Government made some secret new agreement so that the Polaris force is no longer available for supreme national interests or is it a fact that the British independent nuclear deterrent stands absolutely intact?

Mr. Healey: I have said many times in the House, and it is still the case, that of course we retain the right to use it independently if we wish to do so, but I cannot conceive of any circumstances in which we should so wish.

Mr. Ramsden: Will the right hon. Gentleman confirm that the position on the Polaris force in regard to N.A.T.O. is exactly the same as it was under the previous Government and under the Nassau Agreement—governed, assigned and targeted, in the terms of the Agreement—and that no change has been made in the previous position?

Mr. Healey: Certainly regarding N.A.T.O. it is the same but whether the previous Administration had a national targeting plan is not for me to say.

Exercise Peacekeeper

Rear-Admiral Morgan-Giles: asked the Secretary of State for Defence how many North Atlantic Treaty Organisation warships took part in exercise Peacekeeper in September; how many nations provided these warships; and how many of them were British.

Dr. David Owen: 37 warships were provided by five N.A.T.O. Navies. The United Kingdom contribution was one aircraft carrier, one destroyer and two submarines, as well as three Royal Fleet Auxiliaries.

Rear-Admiral Morgan-Giles: As our contribution was the smallest of all countries except for one, it points to continued over-stretch of our ships and ships' companies. Will the hon. Gentleman bring up to date, as far as he can without breaching national security, the overstretch figures in the way in which they were published in the Defence Review, 1966?

Dr. Owen: That is a question which goes far wider than the Question on the Order Paper and it has been answered in the House on a previous occasion.

Sir Ian Orr-Ewing: As the right hon. Gentleman published these figures in 1965, what has happened to provide a reason why we are not able to have the overstretch figures now? The Minister seemed to be trying to make political capital out of a major point of Government policy in 1965. Why is this now secret?

Dr. Owen: It is not secret. It is a question of judgment when we reveal these figures. It is never the practice of any Government to reveal facts thought to be revealing of operational requirements.

Defence Commitments

Mr. Ramsden: asked the Secretary of State for Defence what is the basis for his estimate that Great Britain's defence commitments will have been cut by half in the period between October, 1964, and the end of 1972.

Mr. Healey: The defence policies I have announced in this House.

Mr. Ramsden: When the right hon. Gentleman made his computation about commitments, how many battalions did he allot to Northern Ireland in that context? In general, is it not rather misleading to attempt to quantify commitments in the kind of terms that the Secretary of State has been using in recent pronouncements?

Mr. Healey: No, Sir. If I may give the right hon. Gentleman a clue, we shall reduce the number of United Kingdom uniformed personnel stationed outside Britain by one-half by the end of 1972. This reduction in manpower stationed abroad is paralleled by the ending of commitments in South Arabia, the Gulf, and the Far East, which, as far as I know, the Tory Party propose to maintain, while not providing the forces to support them.

Mr. Dalyell: Mr. Speaker, may we have an opportunity, just for one minute, perhaps at the end of Question time, to hear the answer of the right hon. Member for Harrogate (Mr. Ramsden) to the question put to him in the exchanges

on Question No. 19 by my right hon. Friend the Secretary of State for Defence?

Mr. Speaker: We should have to change the rules of order for that.

Expenditure (Wales)

Mr. Gwynfor Evans: asked the Secretary of State for Defence what proportion of the total expenditure of his Department was incurred in Wales in 1968–69.

The Minister of Defence for Equipment (Mr. John Morris): About 3 per cent. This figure does not include expenditure by the Ministries of Technology and of Public Building and Works on behalf of the Ministry of Defence.

Mr. Gwynfor Evans: In view of the very small proportion of Government expenditure by this Department which is incurred in Wales, will the hon. Gentleman ensure that in the hypothetical Welsh budget which the Government are preparing an equally small proportion of the Welsh costs of defence will be attributable to Wales?

Mr. Morris: I find it difficult to reconcile the hon. Gentleman's pacifist views with his demand for increased expenditure of this type in Wales. I have made strenuous efforts to increase the share of firms in development areas in Government expenditure by having a crash programme to try to identify firms that have not hitherto supplied us. I have also written an article in the journal "Industrial Wales". We also have a preference scheme for firms in development areas.

Mr. G. Elfed Davies: As the Welsh Nationalist Party said in a recent T.V. broadcast that the proposed £70 million defence expenditure in Wales was crazy, will my hon. Friend tell the House how many civilians are employed in defence establishments in Wales?

Mr. Morris: More than 11,000 civilians are employed in Ministry of Defence establishments in Wales. This number does not include those employed by the Ministry of Technology. In Cardiganshire the Ministry of Technology is the second largest employer. Perhaps the hon. Member for Carmarthen (Mr. Gwynfor Evans) will explain to his constituents how he was able to vote against


the Navy Estimates on the last occasion and yet campaign for increased defence expenditure in Wales.

Land (Departmental Rights)

Mr. Gwynfor Evans: asked the Secretary of State for Defence what plans he has to seek to extend the area of land or sand beaches over which his Department exercises rights.

Mr. Hattersley: There are plans for about 18,000 acres, of which about 6,000 acres are sandy beach.

Mr. Gwynfor Evans: Is the Minister of Defence aware of the strength and extent of the resistance to the proposal to move the Shoeburyness gunnery range down to the sand beaches of Carmarthen-shire near to an industrial complex and some fishery and tourist industries? Is he aware of the detrimental effect this move would have on the economic, political—[Laughter.]—or, rather, social life and prospects—also detrimental to the Government's political prospects, I may say—of this area, which has a tremendous potential for growth?

Mr. Hattersley: I do not want to pursue ad nauseam points made on the previous Question, but I believe that the hon. Gentleman's point here is entirely inconsistent with that which he was previously making. In our view, not only is the move necessary in defence terms, but it would be of net economic benefit to the area.

Sea King Helicopters

Mr. Wall: asked the Secretary of State for Defence when the Sea King helicopters will become operational.

Mr. John Morris: The first front line squadron of Sea King helicopters will form at the Royal Naval Air Station, Culdrose, at the end of this month.

Mr. Wall: From what ships other than aircraft carriers and converted cruisers will the new helicopters be able to operate? Are there any plans for fitting them with early air warning to replace the Gannets when the carriers are phased out?

Mr. Morris: I cannot at present help the hon. Gentleman on the latter part of his question. The first operation

squadron will form later this month and the second squadron in June, to embark respectively on the "Ark Royal" and the"Eagle" later this year. The Sea King will also be deployed at sea in the converted Tiger class cruisers and, later, in the new class of cruisers announced in the Statement on Defence Estimates, 1966.

Mr. Robert Howarth: What are the overseas sales prospects for these helicopters?

Mr. Morris: The House is probably aware of the very substantial export order secured from West Germany by Westlands. Several other countries are showing a very strong interest in the Sea King.

Forces (Northern Ireland)

Mr. Stratton Mills: asked the Secretary of State for Defence what steps he is taking to improve the recreational facilities for troops serving in Northern Ireland.

Mr. Hattersley: Many facilities have been provided since the emergency began; at present these are generally adequate to meet most demands. The position is naturally kept under constant review.

Mr. Stratton Mills: Has contact been made with local sports clubs and golf clubs to arrange sports facilities for Service staff?

Mr. Hattersley: There has been a splendid response from all sorts of sports clubs in Northern Ireland, to all of which I am happy to pay tribute. All sports clubs in Northern Ireland have made facilities available to British forces.

Mr. Stratton Mills: asked the Secretary of State for Defence whether he is satisfied that the present tour of duty arrangements provide for adequate continuity in the Staff of Headquarters, Northern Ireland Command; and if he will make a statement.

Mr. Hattersley: Over half of the staff of Headquarters, Northern Ireland, including many of those in senior appointments, are either military personnel on normal two-year tours of duty or civilians in established posts. I am satisfied that this provides adequate continuity.

Mr. Stratton Mills: In this most complex situation, will the Minister of Defence bear in mind the very great importance of keeping people on the Army staff in Northern Ireland, particularly the security staff, in their jobs sufficiently long to give them a full grasp of the situation?

Mr. Hattersley: I do not in any way disagree with the hon. Gentleman's judgment about the necessity of our staffs there understanding, shall I say, some of the subtleties of Northern Ireland. The situation as it exists meets that need.

Mr. Chichester-Clark: asked the Secretary of State for Defence whether he will make a statement about the living conditions of Her Majesty's forces currently in Northern Ireland.

Mr. McMaster: asked the Secretary of State for Defence whether he is satisfied that the arrangements for the heating of temporary military accommodation in Northern Ireland are adequate; and if he will make a statement.

Mr. Hattersley: With permission I shall answer Question Nos. 32 and 33 together.
A considerable amount of temporary accommodation has been taken into use in Northern Ireland for the additional troops now serving there. Much of it was, inevitably, of poor quality, judged by the standards of modern permanent Service barracks. Over the last three or four months much has been done to improve this accommodation including the improvement of heating arrangements. This work will go on.

Mr. Chichester-Clark: Is the Minister of Defence aware that hon. Members on this side of the House who come from Northern Ireland will support any reasonable steps he can take to make living accommodation easier for troops in the very difficult and distasteful job that they have to do in Northern Ireland?

Mr. Hattersley: I am very grateful for the hon. Gentleman's comments. I am sure that he shares my view that the best way of making living accommodation more acceptable to the troops is to have a situation in Northern Ireland which enables us to withdraw more troops from Northern Ireland and, therefore, probably

to withdraw them from the worst accommodation.

Mr. McNamara: Is my hon. Friend aware that all hon. Members, no matter what their opinions, want our troops to be housed as satisfactorily as possible in the circumstances? Is he satisfied that the Northern Ireland Government are doing all they can to give decent conditions to our troops?

Mr. Hattersley: Yes, Sir. The Northern Ireland Government placed at our disposal early in the emergency some of their own resources which they had expected to use for civil purposes, and they have co-operated well in providing the sort of facilities we need.

Aircraft Carriers

Sir Ian Orr-Ewing: asked the Secretary of State for Defence how many months of operational service H.M.S. "Eagle" and H.M.S. "Ark Royal", respectively, will undertake after their modernisation and before it is planned to reduce them to reserve.

Mr. Healey: H.M.S. "Eagle's" modernisation was finished in 1964 and H.M.S. "Ark Royal's" special refit is being completed now. Both ships will remain in service until the withdrawals from Malaysia, Singapore and the Gulf have been completed in 1971.

Sir Ian Orr-Ewing: The Secretary of State has not answered the Question, which asks
how many months of operational service
these ships will undertake. Does it not seem rather ridiculous to spend over £30 million on modernising "Ark Royal" and then plan to have only a few months of operational service before withdrawing this marvellous and modern warship?

Mr. Healey: Nearly three years have to pass before the end of 1972 and a final decision on the use of these vessels or their disposal. Up to the end of 1971 is the period during which they will be operationally required in potential situations while our forces are still east of Suez. It is planned to withdraw them from fixed-wing flying during the following year, which is two years from now, but no final decision has yet been taken


on their future after they are withdrawn from fixed-wing flying.

Mr. Russell Kerr: Will my right hon. Friend come clean with the House and state whether there has been a major change of policy in regard to carriers?

Mr. Healey: There has been no major change of policy in regard to carriers. I faintly resent my hon. Friend's suggestion that I have not come clean with the House on that.

Mr. Fisher: asked the Secretary of State for Defence how much public money has been spent during the past two years in modernising the aircraft carriers "Ark Royal" and "Eagle", respectively; and when it is proposed to place these ships to reserve.

Mr. Healey: During the two years 1968 and 1969, about £23 million was spent on H.M.S. "Ark Royal" and a little over £1 million on H.M.S. "Eagle". Of these sums about one-third related to the fixed overhead costs of running the dockyards. No decision has yet been taken to place these ships in reserve.

Mr. Fisher: How long could the active life of these two ships be after modernisation but for the right hon. Gentleman's decision to scrap them? If he is still determined to scrap them, why has he wasted so much public money in modernising them?

Mr. Healey: Perhaps I can try to explain this to the hon. Gentleman. These two ships, if they run on through the 1970s, as they could in terms of hull life, would require a number more of very expensive refits. The question when to withdraw them from service is not yet finally decided, but, as I announced earlier, they will be withdrawn from fixed-wing flying in 1972, when the requirement for carriers potentially to protect our withdrawal from the Gulf and east of Suez has lapsed. I do not think that any hon. Member would have wanted us to withdraw the carriers from the fixed-wing-flying rôle before that withdrawal was complete. I understand that the Opposition propose to keep them in service as long as they keep forces in the Far East, if the Opposition are ever elected to power.

Mr. Snow: When a decision is taken to put these aircraft carriers either out

of operation or into reserve, will it be possible to flog them to Australia—I hope that that is not a pejorative word? Australia appears to want to build up its forces in the Far East, has a lot of money and frequently reminds us that we should buy its agricultural products.

Mr. Healey: I have several times discussed in the House potential uses for these vessels after they are withdrawn from their fixed-wing flying role, and I should prefer not to take up the time of the House further on that matter.

Fleet Air Arm

Sir Ian Orr-Ewing: asked the Secretary of State for Defence how many officers and men, respectively, of the Fleet Air Arm have been, and will be, made redundant during the years 1969, 1970 and 1971.

Dr. David Owen: None in 1969. In 1970, 18 officers and 802 ratings in the first phase of redundancy. Numbers for the second phase, which extends from April, 1971 to March, 1973, have not yet been finalised, but few discharges are likely in 1971.

Londonderry (Royal Navy)

Mr. Chichester-Clark: asked the Secretary of State for Defence whether he will make a further statement about the use of Londonderry by the Royal Navy.

Mr. Hattersley: As I announced on 18th December, 1969, the Joint Anti-Submarine School at H.M.S. "Sea Eagle" will move from Londonderry in June, 1970 and the Navy's facilities will then be handed over to the Army. A naval rear party will remain, and the Royal Naval Maintenance Base will continue to operate, until the end of 1970. Thereafter, Londonderry will be visited occasionally by Her Majesty's Ships—[Vol. 793, c. 405–6.]

Mr. Chichester-Clark: Has the Minister formed any new estimate of the number of civilian employee redundancies which may result from the change of use, and of the increase or decrease in expenditure which may result in the area, which is very important?

Mr. Hattersley: We are still working on estimates on both points which the


hon. Gentleman raised. He will remember that in any event there will be no forced civilian redundancies until the end of this year. Therefore, there is, I hope, some time for us to make realistic appraisals of what the change-over means.

Gibraltar

Mr. George Jeger: asked the Secretary of State for Defence whether he will ensure that ships of the Royal Navy are constantly in Gibraltar harbour.

Dr. David Owen: It is normal for one of Her Majesty's ships to be in, or within a short distance of, Gibraltar harbour. The harbour is also visited by ships on passage to and from the Mediterranean and Far East.

Mr. Jeger: Is my hon. Friend aware that that will bring great comfort to the Gibraltarians, who are constantly faced with ships of the Spanish Navy patrolling very close to Gibraltar?

Dr. Owen: I have noted my hon. Friend's comments, but I am fully satisfied with our present arrangements.

Sir J. Langford-Holt: Will the Minister assure us that no restriction is placed on either the manoeuvrability or the operations of the Royal Navy by virtue of the attitude of the Spanish Government in the area?

Dr. Owen: No changes are planned in the present pattern.

R.A.F. Station, Lindholme

Mr. George Jeger: asked the Secretary of State for Defence what consideration he has given to the redundancy of Lindholme Royal Air Force Station and its conversion to a civil airport for south Yorkshire.

Mr. Hattersley: R.A.F. Station Lindholme is not surplus to requirements and, although the station's long-term rôle has not yet been decided, there is at present no ground for the assumption that it will become redundant. The question of its conversion to a civil airport does not, therefore, arise, but civil use of the airfield by prior permission of the Commanding Officer is permitted.

Mr. Jeger: Would my hon. Friend bear in mind that Finningley air station is very near to Lindholme and could take over many of the duties now carried out

there? Will he also bear in mind that the West Riding County Council is anxious to establish a civil airport very near there and that Lindholme would be admirable for that purpose?

Mr. Hattersley: In general, the establishment of a civilian airport is a question not for me but for my right hon. Friend the President of the Board of Trade. As my hon. Friend knows, Finningley in any case remains an airfield needed for service use, and therefore I do not think that we can offer him or my right hon. Friend any help there.

Torpedoes

Mr. Wall: asked the Secretary of State for Defence what effect the suspension of the production of the Mark 24 torpedo will have on the operational efficiency of the fleet submarines; and when he expects production to be started.

Mr. John Morris: Our Fleet submarines will continue to be armed with the existing anti-submarine torpedo until the Mark 24 enters service: their current operational efficiency is unchanged by the decision to suspend production of the Mark 24. Re-starting production of this torpedo will be dependent on the progress of development and acceptance trials.

Mr. Wall: Is it not a fact that subsequent to the cancellation of the carrier replacement programme and the F111 the Minister spoke of these vessels as the main striking power of the Navy? Is it not a matter of national concern to find that this main striking power now consists of torpedoes designed in the 1930s?

Mr. Morris: The hon. Gentleman is quite wrong. The problem has arisen because of a delay in development due to design difficulties. Some of the remarks that have been made about the situation are inaccurate, in that the anti-submarine torpedo now in use, the Mark 23, entered service as recently as 1964.

Mr. Brooks: Does my hon. Friend recognise that there is anxiety about the delays? It is a very expensive submarine. A great deal of effort and research has been put into it, and continues to be put into it. As it is supposed to be responsible for, among other things, safeguarding our Polaris submarines against very sophisticated Soviet weaponry, may we at least


be given an assurance that work on this new torpedo will be accelerated?

Mr. Morris: No one is more concerned than I am to ensure that this new torpedo gets under way—[Laughter.]—that is, that the production of the torpedo gets under way. As soon as the seriousness of the situation became apparent, we took urgent steps to ensure that everything possible was done, by setting up a project-type organisation of the same pattern as that which proved so successful in the Polaris programme.

Mr. Gordon Campbell: Will the Minister explain why the main torpedo armament for the Royal Navy should now be suspended, which also means that an ordance factory in Scotland employing over 1,000 men is closing down? Has he instituted an inquiry into this?

Mr. Morris: I can assure the hon. Gentleman that every possible step has been taken to ensure that the operation is properly looked after and that we have the right type of organisation to make sure that we succeed in meeting for the Royal Navy this urgent need for a torpedo. With regard to Alexandria, I have had long talks with the trade unionists concerned and with my hon. Friend the Member for Dunbartonshire, West (Mr. Thomas Steele). It is very regrettable that this excellent factory, on which aspersions have been cast, is unable to continue in production. It is no reflection at all on the factory or the labour force. It is due entirely to design difficulties that we have had to suspend production at the factory.

Mr. Wall: On a point of order. I wish to give notice that I will raise this matter on the Adjournment.

N.A.T.O. (Combatant Ground Forces)

Mr. Shinwell: asked the Secretary of State for Defence what proportion, expressed as a percentage, of the combatant ground forces is contributed by each of the member countries of the North Atlantic Treaty Organisation and is at the service of the Supreme Commander.

Mr. Healey: It is not for me to give details of the forces assigned by other N.A.T.O. countries, but I would refer my right hon. Friend to the publication "The Military Balance" issued by the Institute

of Strategic Studies which will give him a fairly reliable general picture.

Mr. Shinwell: My right hon. Friend is closely associated with the North Atlantic Treaty Organisation. He cannot shove it under the carpet. It is desirable to retain forces in Europe, but does not he recognise that, now that the Canadian Brigade has withdrawn, France has opted out, and the Belgian and Dutch forces are negligible, we are being asked to bear an excessive burden in proportion to the totality of forces in Europe?

Mr. Healey: I do not think that that is the case. It is worth pointing out that the European members of N.A.T.O., unlike the North American members, have substantially increased their contributions since the Czech crisis and are taking effective steps to fill the gap left by the withdrawal of the Canadian Brigade. A very much bigger contribution is made by West Germany than by us to ground forces in Europe.

Mr. Eldon Griffiths: Is not the important point here that American forces are to be reduced in Europe? Is it not time the Government started making plans now for that contingency when it arises? How can they go on cutting our defence budget when the Americans are starting to go home?

Mr. Healey: If the hon. Gentleman attended our proceedings more regularly, he would know that I referred—[Interruption.]—in the defence debate a year ago, and also the year before that—

Sir G. Nabarro: On a point of order. Is it in order, Mr. Speaker, for the Secretary of State wrongly to impute absenteeism to my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths)? Should he not withdraw that innuendo at once?

Mr. Speaker: It has been traditionally in order for a Minister to be right or wrong.

Mr. Healey: The hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) should be aware that, in the defence debate a year ago, and in the debate the year before that, I referred to this possibility and also mentioned some of the steps which the British Government were taking to deal with it. He would also


have known that the British forces in the Rhine Army are up by 3,000 on the number left by the Conservative Administration in 1964.

Sir Ian Orr-Ewing: Does not the right hon. Gentleman realise that my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) is a member of Western European Union Assembly and a very assiduous attender there? While he is serving there, he cannot be in this House and therefore is it not a smear to impugn his integrity and the services which he gives us? Could the right hon. Gentleman correct that figure of 3,000, because, as he knows, until he restores these troops the actual number on the ground in Germany is less today than when he took office?

Mr. Healey: There seems some disagreement between hon. Members opposite whether the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) was here or not and, if he were not, what was the reason. If he has attended W.E.U., he should surely know what steps the Government have taken and propose to take to deal with the situation to which he referred.

Mr. Maudling: Does the right hon. Gentleman think that he is doing a service to his office by employing smears of this kind? Before he said it, did he check up on the activities of my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths)?

Mr. Healey: I have attended every debate on defence in this House over the last five years and I am well aware which have been attended by the hon. Member for Bury St. Edmunds and which have not. The facts which I have given show that his question was based on total ignorance of the Government's policies.

Mr. Eldon Griffiths: On a point of order. Since the matter to which I was referring is almost entirely new—namely, the new decision of the American Government, which could not have been known in the detail in which it now is known to this House—will the right hon. Gentleman, in these circumstances, withdraw what he said and recognise that my absence from this House when there is a defence debate is for one reason only—because I am sent by the House to

W.E.U., N.A.T.O. or the Council of Europe?

Mr. Healey: I have no desire unfairly to criticise the hon. Member. But if he now admits that he was not present at the debates, he cannot blame me for referring to the fact that he was not present. If there has been any suggestion that his absence was due to improper reasons, then, of course, I made no such implication, and any belief that I did is a mistake.
I should point out to the House that no decision has been taken by the United States Government to reduce their forces, but the probability of some reduction in American forces during this decade was mentioned three years ago by the then American Defence Secretary, Mr. McNamara, and was referred to later by President Johnson and also by Mr. Clifford, who was by then Defence Secretary, two years ago. There has been no new decision since then. What has happened is a very welcome decision announced by President Nixon that no reduction will take place at least before the middle of next year. Whether a reduction will then take place has not been decided.

Chieftain Tanks

Mr. Goodhew: asked the Secretary of State for Defence when he expects the delivery of Chieftain tanks to the British Army to be completed.

Mr. John Morris: I expect the delivery of Chieftain tanks to the British Army to be completed during the financial year 1973–74.

Mr. Goodhew: Is the hon. Gentleman aware that that is a disappointing reply? Will he ensure that, in the meantime, no exports of these tanks are made to other countries just in order to help our balance of payments when they are vitally needed for the British armed forces?

Mr. Morris: I can give no such assurance. The re-equipping is well in hand, having regard to the economic, technical and military factors, all of which are part and parcel of the important process of re-equipping the regiments.

Mr. Henig: Since the Chieftain is rightly claimed to be probably the most advanced tank in the world, will my hon.


Friend be careful, in sales of it to third countries, to make certain that none of them could fall into the hands of potential enemies of this country? I think he will know what I mean.

Mr. Morris: If I know what my hon. Friend means, I think I can give him the assurance that all these matters are taken into account before any decision on sales is taken.

Armed Forces (Desert Training)

Mr. Goodhew: asked the Secretary of State for Defence if he will make a statement on the provision of desert training for the armed forces after the withdrawal from Libya.

Mr. Healey: There is no long-term requirement for desert training as such for our armed forces.

Mr. Goodhew: How can the right hon. Gentleman make such a statement? Is he suggesting that there is no possibility ever again of British armed forces having to operate in desert conditions? Why was he so ready to dismiss the suggestion, put by my hon. Friend the Member for Cambridge (Mr. Lane), about the use of Sharjah in the Persian Gulf? Does not he, recognise that withdrawal from that area has become stupid and that it would he wiser to ensure a continuing presence there to maintain training?

Mr. Healey: I did not dismiss the suggestion of the hon. Member for Cambridge (Mr. Lane). I said that it was under consideration. The British forces in Libya are there primarily because it has very large under-populated and unpopulated areas where it is possible to carry out large-scale training, both land and air, in conditions which it is difficult to find in any other part of the world near Europe. Desert training is a secondary factor, even in Libya.

Malta (Military and Naval Facilities)

Mr. Fisher: asked the Secretary of State for Defence what changes he proposes in the establishment and use of the military and naval facilities in Malta, in the light of the agreement reached on the withdrawal of British troops from Libya.

Mr. Healey: None, Sir.

Mr. Fisher: Is this not an opportunity to help both Malta and ourselves without increasing the defence forces or reducing our defence capability in the Mediterranean area?

Mr. Healey: This opportunity is, of course, always there, but the withdrawal of British troops from Libya does not affect British requirements in Malta. The presence of British troops in Malta has been largely justified by the defence commitment to Libya which is now terminated.

BRITISH TROOPS, MALAYA (ALLEGATIONS)

The following Question stood upon the Order Paper:

MR. LIPTON: 72. MR. LIPTON to ask the Secretary of State for Defence whether he will institute proceedings against those responsible for the massacre of civilians in Malaya towards the end of 1948.

The Secretary of State for Defence (Mr. Denis Healey): With permission Mr. Speaker, I will now answer Question No. 72. I think the House would wish me to do so.
I assume that my hon. Friend is referring to allegations which were reported in the Press last weekend that a number of civilians had been massacred by British troops in Malaya in 1948.
These allegations relate to an incident that took place on 12th December, 1948, during operations in Selangor. This incident was the subject of two separate investigations at the time, one by the military authorities in the Far East and one by the civil authorities in Malaya. So far as is known, no report was received by the War Office from either source of any criminal conduct on the part of the British troops who took part in this incident.
However, since these allegations have been made, I am treating the matter with concern and urgency. The question of whether there should be criminal proceedings is not now a matter on which the Army has any jurisdiction. I have therefore called for such documents relating to the original investigations as may still be available and other material arising out of the present allegations. I shall


then consider, in the light of this information, whether I should refer the matter to the Director of Public Prosecutions for further investigation.
In the meantime, I am sure the House will understand that it would be improper for me to comment on the substance of the allegations.

Mr. Lipton: It will be necessary to examine with scrupulous care any new evidence that may come to light. Does not the issuing by the Ministry of Defence a couple of days ago of a statement that the allegations could amount to allegations of murder tend to deter potential witnesses and have the appearance of prejudging the issue? Is such a statement likely to assist the successful outcome of the investigation?

Mr. Healey: We may all have our opinion as to what publications by whom in the last few days will have assisted the course of justice, but there is no doubt that these allegations, if true, are very serious indeed. I think it is the duty not only of myself as Secretary of State for Defence but of every Member of this House to recognise that there is a direct conflict of evidence on what may or may not have happened, and I must say that I found the form of the hon. Member's Question very prejudicial to any inquiry.

Mr. Ramsden: Is the Secretary of State aware that no one will wish to criticise either his or his Department's reaction to this incident, or his handling of it, in view of what has happened? Is he also aware that most people feel that raking over the past in the context of this incident, which was twice investigated over 20 years ago, can be of no conceivable value or help to anybody, unless it be to fill newspaper column inches, and that it will be the general wish that his investigation should be concluded and the incident dismissed?

Mr. Shinwell: Although it may be regrettable to have to rake over the past, is my right hon. Friend aware that every sensible person will wish an investigation to be initiated in the interests of all concerned? He is aware of what appeared in a Sunday newspaper. May I ask him whether the editor of the news-

paper or any person representing that newspaper approached the Ministry of Defence, or any appropriate Government Department, before publishing these allegations? Was any attempt made to ascertain whether any reports were available to the Ministry of Defence?

Mr. Healey: So far as I am aware, no approach was made to any Government Department before this article was published, but I think the House will recognise—as I think my right hon. Friend did in his words, for which I am very grateful—that once these allegations had been published it was my duty to the Services and to those named in the allegations to seek such information as I was able to enable me to decide whether or not I should suggest to the Director of Public Prosecutions that he should make further inquiries.

Mr. Hastings: To set the record straight, will the Secretary of State take this opportunity to pay tribute to the outstanding achievement in Malaya of the Second Battalion Scots Guards?

Mr. Healey: I think it is worth saying—and I am grateful to the hon. Member—that, whatever the outcome of these inquiries, we must all recognise that the behaviour of our forces in an extremely disagreeable and painful colonial war during the emergency in Malaya deserves the highest praise, and that the success of the operation was historically almost unprecedented in a guerrilla war of this nature.

Mr. Michael Foot: Will the Secretary of State examine afresh and very carefully the statement he has just made to the House that no approach was made to the Ministry of Defence by the People, the newspaper which originally published these allegations? Will he examine this matter in the utmost detail, since I believe there is a direct conflict of evidence on the subject, and, if he finds that he is mistaken in that statement, will he come to the House and make that quite clear?

Mr. Healey: I will certainly investigate further, but, as I understand it, the only approach of any nature which was made during the period when this article was being prepared was a request from the People to interview the regimental sergeant-major who is mentioned in the


articles; but no explanation was given of the reason why the newspaper wished to question the regimental sergeant-major or of the nature of the articles which it was proposed to publish.

Mr. Younger: Has the Secretary of State made any inquiries as to what has been paid to the people who have made these allegations? Could he also say whether, if the evidence given now of those people is in complete conflict with the evidence which they gave at the time of the previous inquiries, there will be any question of proceedings for perjury?

Mr. Healey: These are not questions for me but for the civilian legal authorities. My duty, as I understand it, is to assemble such information as is within my possession as Secretary of State for Defence and, if I believe when I have assembled this information that there are grounds for asking the Director of Public Prosecutions to make a further investigation with a view to a possible prosecution, then to take that decision. It is not my responsibility—indeed it might well be considered prejudicial to any further proceedings which might follow—to seek to elicit evidence by attempting to interview persons who have put their views or experiences, or alleged experiences, on record.

Mr. Thorpe: Will the right hon. Gentleman accept that there will be widespread welcome that this matter is to be fully and impartially investigated? Since this is the second occasion within very recent memory when we have seen trial by newspapers, with serious allegations made against people who are put in a difficult position, will the Director of Public Prosecutions also consider the possibility of prosecution for criminal libel against those who make such allegations?

Mr. Healey: The House will recognise that that is not a question for me. However, I think I express the view of the whole House when I say that it is highly undesirable that articles should be published in newspapers and that persons should be encouraged to make statements in newspapers without any warning being given to them as to the consequences which might follow.

PERSONAL STATEMENT

Mr. William Price: On a point of order. May I ask for your guidance, Mr. Speaker? Arising out of the debate last night on prices and incomes, certain remarks reported in The Times newspaper this morning were attributed to me—

Mr. Speaker: Order. We cannot discuss yesterday's business in the House.

Mr. Price: I accept that, Mr. Speaker. All that I wanted to ask you was this: would I be in order in pointing out that those remarks were not directed at the hon. Member for Worthing (Mr. Higgins)?

Mr. Speaker: I appreciate the hon. Gentleman's motive, but we cannot have an inquest in the House on what took place the day before.

LOCAL GOVERNMENT REFORM IN ENGLAND

The Secretary of State for Local Government and Regional Planning (Mr. Anthony Crosland): With permission, I wish to make a statement about the reform of local government in England, on which a White Paper is published today.
The White Paper sets out the Government's conclusions on all the structural proposals of the Redcliffe-Maud Report, and on their broad application to the map of England. There is widespread agreement that a major reform of local government structure is required. While dissenting on certain points, to which I refer later, the Government believe that the Royal Commission's proposals provide the best basis for this reform.
The Government accept that wherever possible all local government services should be in the hands of a single authority, that these unitary authorities should have areas covering both town and country, and that they should be generally of the size proposed by the Commission.
In certain parts of the country, however, the requirements of planning and development call for areas of a size and population much larger than are desirable for other services, such as the personal social services and most of the work in


the housing field. In such metropolitan areas, as the Commission call them, a two-tier solution is necessary.
The Government differ from the Commission on two points concerning the metropolitan areas. First, in our view, education should be the responsibility of the top-tier rather than the second-tier authorities. Secondly, while agreeing with the Commission that metropolitan areas are required in Merseyside, in South-East Lancashire and North-East Cheshire and in the West Midlands, the Government believe that a two-tier system is also necessary in West Yorkshire and in South Hampshire, including the Isle of Wight. Both these areas need to be dealt with as single units where planning and development are concerned.
The Commission proposed that the unitary and metropolitan areas should contribute members to eight provincial councils, whose main task would be to draw up the regional planning strategies within which the main authorities would work. There is no doubt as to the importance of this task; but it would be premature to reach conclusions on a new machinery to undertake it until the Commission on the Constitution have reported. Meanwhile, the Government intend to develop the work of the Regional Economic Planning Councils, and will seek to ensure effective co-operation between them and the local authorities in their regions.
The Commission proposed that there should be local councils with the function of voicing the wishes and views of their communities, and the power to improve local amenities. They also suggested that the larger local councils might play a part in providing some of the main services. Although the Government do not accept this last suggestion, they believe that local councils will form an indispensable part of the new structure, and propose that in addition to their other functions they should be associated with the administration of some of the major services by having the right to appoint members to district committees of the main authorities.
So much for structure, on which the Government asked for early comments, and I should like to express my gratitude to all those who, by letting us have their comments without delay, have enabled us to present conclusions so expeditiously.

But the White Paper also records the Government's conclusions on certain other matters.
As the Prime Minister has already made clear to the House, the Government believe that local government should have more freedom than it has today. Reorganisation creates the opportunity for achieving this. The White Paper therefore tables proposals for the relaxation of financial controls, non-financial controls, and controls over the way in which authorities manage their internal affairs; and also for a general power.
Reorganisation also creates the opportunity to review the whole field of local government finance, including local taxation. These subjects are too important and complex to be dealt with adequately in a White Paper about reorganisation. Moreover, they call for further discussion and consultation. The Government will therefore publish a separate Green Paper on this subject later. However, the White Paper records the Government's view that the Commission was right in saying that, for local government as now visualised, rates must remain the principal local tax.
The White Paper also deals with the expenses of councillors, the liberalisation of the present rules on disqualification, and machinery for investigating complaints of maladministration in local government. It states our conclusion that there should be no aldermen in the new authorities. It proposes a Staff Commission on the London model to help during the transition.
On many of these points, as well as on the detailed boundaries of the new authorities, the Government will now arrange for a further round of consultations. But the comprehensive conclusions on structure described in the White Paper should enable a Bill to be ready for the Parliamentary session of 1971–72.
Mr. Speaker, a Government which undertakes the reform of local government undertakes hard and unpopular work, but work which cannot be shirked. There will be many arguments for and against our proposals; for there is no uniquely right solution to the problem of local government. But there will be few who will not agree that reform on this scale is needed, and that Parliament should enable it to be effected as soon as is practicable.

Mr. Peter Walker: I thank the Minister for his statement. He will be aware that the House will want to give careful consideration to what is a complicated White Paper, particularly the proposals on local councils.
On what date does he expect to publish the Green Paper on the finance of local government? Would he agree, on reflection, that as he has had to postpone the ideas on provincial councils and leave that matter in abeyance, it would probably have been better to have had Crowther before Maud rather than Maud before Crowther?
Would the right hon. Gentleman give an assurance that there will be the fullest consultation about boundaries, and particularly the effects of breaking up existing authorities, with all the resources that they may have? Finally, the Minister said that the Government's policy is that local government should have more freedom. Does that mean that the Government will drop their legislation on secondary education and the sale of council houses?

Mr. Crosland: I was glad to hear what the hon. Gentleman said about a debate. In view of the Opposition's deafening silence on this entire subject, we shall look forward with lively expectation to hearing their views.
The date of publication of the Green Paper will be a matter of months rather than weeks. I prefer not to commit myself to a date. I do not agree with the hon. Gentleman about Crowther and Maud. There is some misunderstanding here. The Crowther Commission was set up to consider functions which might be transferred, not from local government to provincial government, but from central Government to provincial government. There is no doubt in my mind that the first step is to fix the new local government structure and then to consider the question of provincial government.
I can guarantee that there will be very full consultations on the matter of boundaries. Comprehensive reorganisation—namely, the national will to abolish the 11-plus—will still proceed.

Several Hon. Members: Several Hon. Members rose—

Mr. Speaker: Order. As an honorary alderman, I know the interest of the

House in local government. But I must protect the business of the House, and questions must be brief.

Mr. R. C. Mitchell: Is my right hon. Friend aware that there will be considerable concern in South Hampshire about these proposals, especially those in relation to the size of the second-tier authorities proposed for the metropolitan area? Would it not have been better to have had rather more than three second-tier authorities so that local government could really be local?

Mr. Crosland: It is my hope that these proposals will be generally welcomed in South Hampshire which, by general agreement, is the area of the country which is growing at the most exceptionally rapid rate. As for the districts within the new metropolitan authority, as my hon. Friend knows, we propose three, but this is a matter which could, within the general framework, be discussed in the consultations.

Mr. Selwyn Lloyd: Is the right hon. Gentleman aware that, although most people think that there is a need for very substantial changes both in boundaries and in powers, at all events in the North-West there will be great anxiety and indeed horror about the Government's decision to endorse the destruction of the Lancashire County Council and the Cheshire County Council?

Mr. Crosland: That view will be held in the North-West, but, as the right hon. and learned Gentleman knows, there are conflicting views in the North-West, as there are elsewhere. The fact is that on this proposal, as on most others, there will be many in the local government world who support it and many who oppose it.

Mr. Blackburn: Is my right hon. Friend aware that he can expect strong opposition to these proposals? While everyone agrees that some measure of reform is necessary, it would appear that the Government have fallen into the same mistake that the Redcliffe-Maud Report has in thinking that mere size is the criterion of efficiency. Can he say whether any estimate has been made of the cost of carrying these proposals into effect? Can he also say, if we are to have a debate, what form that debate will take?

Mr. Crosland: The debate is a matter for my right hon. Friend the Leader of the House. Of course, there will be opposition to these proposals in every part of the country. The fact is that almost everyone goes round saying that major reform is needed, but objecting to particular proposals for reform which are put forward. We have now to make the best judgment that we can about the reform that we want, and get on with it.
It is not possible to put a cost to the new proposals. In some directions, they will lead to an economy in staff.
There was one other question, but I have forgotten what it was. I will write to my hon. Friend about it.

Mr. Turton: Will the right hon. Gentleman bear in mind that, to be effective, local government must remain local and not become remote? Is not a unitary area containing York, the North Riding, parts of the East Riding and parts of the West Riding an abuse of that principle?

Mr. Crosland: No, Sir. Whether it is judged by the size of the local government constituencies, the distances from the capital of the new authority, or the number of electors per councillor, the right hon. Gentleman will find that the new unitary authorities are not significantly different from the larger county councils which exist today. But there is a danger, and it is because of the danger that we have elaborated our proposals for local councils which I hope, when the right hon. Gentleman comes to read them, he will think are positive.

Mr. Milne: Is my right hon. Friend aware that the opportunity provided in the White Paper for further discussions with the local authorities will be welcome, particularly in Northumberland. However, in view of the fact that the pace of change will be determined in months rather than weeks, as my right hon. Friend has said, will he look at the question of the local government staff commission and at that of the administration of the local commissioner for local government with a view to those being set up prior to the implementation of the Report?

Mr. Crosland: I will consider that last proposal. The first thing to do is to

put forward proposals for the local ombudsmen, as they are called, in rather more detail, after consultations with the local authorities.

Mr. Lubbock: Has the right hon. Gentleman noticed the argument of Professor Peter Hall and others in The Times today in favour of 12 provincial councils charged with strategic functions such as land use, planning and transport? Is he aware that the White Paper will cause disappointment among those who hoped that provincial councils would be part of the Government's proposals? Will it not make it more difficult, by strengthening regional economic planning councils and creating these new metropolitan authorities, ultimately to have democratic control of these strategic functions throughout the whole of England?

Mr. Crosland: No, Sir. I do not think that these proposals prejudge the possibility of ultimate democratic control of whatever machinery we have at regional or provincial level. I read today's letter in The Times with interest. The proposals were put to the Royal Commission, and they are set out in detail in its Report. It came to the view that to create 130 to 140 separate authorities would result in authorities which were too small for education and almost certainly too small for the personal social services.

Mr. Ginsburg: While there may be some arguments for a metropolitan area for the West Riding, is my right hon. Friend aware that there will be less welcome for his proposal to retain the five Maud sub-areas? Will he confirm that his remarks to my hon. Friend the Member for Southampton, Test (Mr. R. C. Mitchell) also apply to the West Riding as regards the number of the areas concerned?

Mr. Crosland: We can consider this matter of the number of metropolitan districts, but I do not want to give the impression that the Government would accept a totally different size and pattern of districts in the new West Yorkshire metropolitan area.

Mr. Ridsdale: As the reform of local government finance is some time away, is the right hon. Gentleman aware of the very heavy burden of education costs


which falls on many small householders? While one welcomes the new proposals for rate rebate, do the Government intend to extend the domestic element of rate support grant to protect other householders who are weighed down by the heavy education charges which are falling on them?

Mr. Crosland: In advance of the Green Paper, the Government would not propose to put forward any major suggestions for reforming rates. We have already reformed them in terms of the rate rebate scheme and the possibility of paying by instalments. They still remain a tax which, though essential to local government, is capable of improvement.

Mr. MacDermot: In welcoming my right hon. Friend's proposals, may I put two questions to him? First, what considerations led the Government not to recommend extending the metropolitan area principle to the Derby, Derbyshire, Nottingham, Nottinghamshire sub-region, which is growing almost as fast as the others which he has mentioned? Secondly, while welcoming what he said about the local councils, can be indicate whether the Government's recommendations lean more towards the proposals in Mr. Senior's dissenting memorandum or those in the main Maud Commission Report?

Mr. Crosland: On the second part of my hon. and learned Friend's question, the local councils will initially start off as what one might call Maud-type local councils. It is my hope that, when it is possible to revise their boundaries, they will take on more the character of community or neighbourhood councils. But that is a matter for experiment in the future.
On the first part of his question, this proposal was considered. It has not been widely supported in general discussion, and it was the Government's view that the problems in these two counties were not as urgent as the similar problems in South Hampshire.

Mr. Fortescue: The White Paper promises a new Green Paper on the administration of the Health Service. How soon will that be published, and when does the right hon. Gentleman envisage legislation?

Mr. Crosland: The Green Paper will be published in a very few days.

Mr. Blenkinsop: Will my right hon. Friend nevertheless receive representations on increasing the number of metropolitan authorities, particularly on Tyneside where there is a complete isolation of urban from rural communities? At the same time, I welcome the proposal about grass-roots organisation of local councils.

Mr. Crosland: I am aware of my hon. Friend's views on a Tyneside metropolitan area, but his views are not universally shared in his region. I can hold out no hope that the Government will create additional metropolitan areas.

Mr. Woodnutt: While welcoming the improved attitude for South Hampshire and the Isle of Wight, may I ask whether the Minister thinks that he would be better advised to maintain more flexibility in the allocation of functions between metropolitan authorities and metropolitan districts as between one area of the country and another? It seems lacking in sense that an island authority should have to rely on a mainland authority for water, ambulances, sewerage, fire and other services of that kind.

Mr. Crosland: I will have to consider whether the problems of islands could be considered separately. But I do not want to hold out any general hope that the division of functions which we propose between metropolitan authorities and metropolitan districts will be changed in any substantial way.

Mr. Peter Mahon: Will my right hon. Friend take into consideration in this regard what has happened over the amalgamation of police forces, where there has been a tremendous increase in cost with a notable decrease in efficiency in so many cases?

Mr. Crosland: I do not think that this view would be universally shared. It is not borne out by my experience in my own area.

Mr. Crouch: The right hon. Gentleman has presented proposals in which the main emphasis is on the structure of a new organisation in local government. Will he bear in mind that there is a considerable body of opinion in the


country that the first priority and emphasis should be on effective democratic representation?

Mr. Crosland: I hope that the hon. Gentleman, after studying the structure which we propose, will agree that it provides for effective democratic representation. Incidentally, when people object to the idea of a radical new reform, they should not give the impression that existing local democracy is in a state of continuing vitality at the grass roots, because that is not borne cut by the facts.

Mr. Roy Hughes: Is my right hon. Friend concerned about the large reduction in the number of councillors that his proposals would entail? Does he not feel that this cut in numbers could be a grievous blow to voluntary service in this country?

Mr. Crosland: There will be a large reduction, at any rate in the number of councillors administering statutory services; but this is the price that we must pay for a more effective democratic local government. I remind my hon. Friend that the proposal for local councils, even though they will not administer statutory services, will provide a very great opportunity indeed for voluntary service.

Mr. Eldon Griffiths: Does not the putting off of this proposed legislation mean two things: first, that whatever the right hon. Gentleman may propose, it will fall to my right hon. Friend the Member for Bexley (Mr. Heath) to decide; and secondly, that, in view of the constituency boundaries, be is not proposing to make the Home Secretary an honest woman in this Parliament?

Mr. Crosland: Everything that the White Paper states about dates and procedure is wholly consistent with the lucid statements that my right hon. Friend the Home Secretary has made from time to time to the House.
As to postponing the legislation, I think that most people in local government will be surprised how rapidly we intend to proceed on the subject. We shall certainly surprise Lady Sharp who made a speech in another place suggesting a somewhat slower timetable.
In the wholly unlikely event of the Leader of the Opposition assuming

power, may I say that the country is in a state of utter confusion about what views, if any, he holds on the subject. Evidently it was too complex for the cloudy atmosphere of the Selsdon Park Hotel.

Mr. Coe: Is my right hon. Friend prepared to accept any new proposals for metropolitan areas in view of what he said to my hon. Friend the Member for South Shields (Mr. Blenkinsop)? Also, is he satisfied that the unitary authorities will be large enough to cope with higher education? Can he see any future development in that sphere?

Mr. Crosland: No, Sir. I must disappoint my hon. Friend on the first part of his question. The Government have decided that there should be five metropolitan areas, and we would not be prepared to reconsider that decision.
We think that the new main authorities will be large enough to deal with higher and further education. Indeed, this is one of the strongest arguments against the solution, put forward in The Times letter this morning, of having 130 to 140 education authorities.

Mr. Waddington: Will the Minister explain why a two-tier system is considered appropriate for West Yorkshire but inappropriate for East Lancashire? In what way are the problems of the two areas alleged to be different?

Mr. Crosland: I could go into details in the debate when we have it. In our view, the problems of change in West Yorkshire concerning housing and new industry are of an altogether more urgent character than is the case in central Lancashire. We believe that the case was made out for the one but not for the other.

Mr. Mackintosh: Is my right hon. Friend aware that any of the many proposals which are possible from the Crowther Commission on decentralisation would inevitably involve these authorities that they might propose having some local government powers? If they had some local government powers, the unitary authorities would be a second tier and the precise shape, size and function of these authorities would have to be reconsidered. If my hon. Friend is not going to condemn this Commission to a total waste of time, surely he should


assure it that he is prepared to keep an open mind on both issues?

Mr. Crosland: It was made clear when the Crowther Commission was set up that it was not intended that its establishment should prevent the work of local government reorganisation going ahead. Furthermore, it was made clear that the Crowther Commission would mainly consider transfers from the centre to the provinces, not from local government to the provinces. Indeed, the Government accept the view of the Redcliffe-Maud Report that provinces are not suitable for the administration of the main local government services. Therefore, I cannot accept what my hon. Friend has said.

Mr. Speed: Is it not clear that the Government have largely ignored the comments from local authority associations and others and in fact had made up their mind before the White Paper was issued and before they asked for comments?
Will the right hon. Gentleman confirm that when comments were asked for from local authorities, they were not asked to comment on the Senior minority report?

Mr. Crosland: No. Local authorities and the associations were free to comment on Senior or anything else, as my right hon. Friend the Prime Minister said in his statement to the House on the day of publication of the Redcliffe-Maud Report.
I can assure the hon. Gentleman that the Government had not made up their mind before consultations took place. I took over this task at the beginning of October when the consultations were starting, and I did not then know enough about the subject to have made up my mind.

Mr. Raphael Tuck: Is my right hon. Friend aware that the half-baked suggestion that Hertfordshire should be

divided into two parts has caused great consternation? Will he look at this very carefully and then kindly disapprove of it?

Mr. Crosland: I will look at it very carefully but I will not necessarily disapprove of it.

Several Hon. Members: Several Hon. Members rose—

Mr. Speaker: Order. I must protect the business of the House.

BILLS PRESENTED

EDUCATION

Mr. Secretary Short, supported by Mr. Secretary Thomas, Mr. Attorney General, and Miss Alice Bacon, presented a Bill to make provision as to the duties of local education authorities with respect to the ending of selection of pupils for admission to secondary schools by reference to ability or aptitude; and for purposes connected therewith: And the same was read the First time; and ordered to be read a Second time tomorrow and to be printed. [Bill 91.]

AMUSEMENT ARCADES (REGULATION)

Mr. Kenneth Lomas, supported by Mr. Gordon A. T. Bagier, Mr. Ray Mawby, Mr. Richard Wainwright, Mr. Gordon Oakes, Mr. Frank Judd, Mr. Ben Ford, Mr. Kenneth Marks, Mr. John Ellis, Mr. Alfred Morris, Mr. John Binns, and Mr. Eddie Griffiths, presented a Bill to enable local authorities to regulate the establishment and conduct of amusement arcades; to restrict the admission of young persons; and for purposes connected therewith: And the same was read the First time; and ordered to be read a Second time upon Friday 6th March and to be printed. [Bill 92.]

ROAD TRAFFIC (AMENDMENT)

4.8 p.m.

Mr. David Waddington: I beg to move,
That leave be given to bring in a Bill to amend the Road Traffic Act 1960 so as to require, subject to certain exceptions, in the case of motor cyclists, users of motor vehicles to be insured in respect of liability for death or bodily injury to passengers; and for connected purposes.
I think all hon. Members know the mischief at which this Measure is aimed. I venture to think that there must be almost unanimous support in this House for a change in the law.
Hon. Members will be aware that both the present Minister of Transport and his predecessor have expressed the wish that legislation should be introduced as soon as possible. However, although the Minister said, as recently as 11th November last year, that a Bill would be introduced as soon as there was a suitable opportunity, the indications obviously are that it is not intended that anything should be done during this Session. I hope that the Bill may galvanise the Government into activity, and I need hardly say that if the Government were to adopt this Measure nobody would be more delighted than myself.
The House will know that whereas for many years a driver has been compelled by law to insure against third party risks, passenger liability insurance has not been compulsory, except in the case of carriage for hire or reward. All too often one hears of a man or woman, boy or girl, being grievously injured while travelling as a passenger in a motor car or when riding on the pillion of a motor cycle, of being so injured owing to the negligence of the driver, and of then being unable to recover any compensation at all for the injuries suffered because the driver has no money, and a claim for damages in the courts would be a waste of time. A young man can cause his girl friend to be hideously disfigured and she has no redress. The breadwinner of the family may be permanently disabled when riding on the pillion of his friend's motor cycle, or when travelling in his friend's sports car, and he gets no compensation.
It really is not good enough to say that such a person has taken the risk on

himself, or should have first inquired whether his driver was comprehensively insured. This is a real world in which we are living, and in the real world people simply do not ask questions like that, and young persons who do not know the niceties of motor vehicle insurance are entitled to some protection from the law.
I am not sure that it is really right to look only at the hardship caused to the victims of these motor accidents. I am inclined to think also of the burden of guilt which must rest on a young man who maims his best friend and can then do nothing at all to compensate him. One knows of all too many cases of that kind.
I know that the British Motor Cycle Federation is worried lest its members are to be charged excessive premiums, but at this stage I merely point out that the Kent Committee set up by the Government some years ago emphasised that there was competition in the insurance market and that premiums would find their proper levels reasonably quickly. As for motor cyclists who do not carry passengers and whose vehicles are not adapted for the carrying of passengers, I envisage the possibility of their being exempted from the obligation to insure.
I am sure that the vast majority of drivers and riders will see the good sense of these proposals, and of the advantages to themselves, and will willingly accept the extra financial burden.
I commend the Measure to the House and ask leave to bring in the Bill.

Question put and agreed to.

Bill ordered to be brought in by Mr. David Waddington, Mr. Charles Pannell, Mr. John Hay, Dr. Winstanley, and Mr. Anthony Berry.

ROAD TRAFFIC (AMENDMENT)

Bill to amend the Road Traffic Act, 1960, so as to require, subject to certain exceptions, in the case of motor cyclists, users of motor vehicles to be insured in respect of liability for death or bodily injury to passengers; and for connected purposes, presented accordingly, and read the First time; to be read a Second time upon 13th February and to be printed. [Bill 89.]

Orders of the Day — ADMINISTRATION OF JUSTICE BILL [Lords]

Order for Second Reading read.

4.14 p.m.

The Attorney-General (Sir Elwyn Jones): I beg to move, That the Bill be now read a Second time.
The Bill makes a number of important changes in the machinery of justice. It is part of the process of modernising and improving the administration of the law, as well as reforming the law itself, which has been a significant part of the work of this Government.
It had been obvious for some time before the Beeching Report that the increase in the volume of crime and the increase in the number of criminal appeals, combined with an increase in the amount of litigation, were subjecting the administration of justice to serious stress. It has been said, rightly, that justice delayed can be justice denied. The Government have taken several steps to deal with this problem. Since 1965, 14 new High Court judges and 23 new county court judges have been appointed, and Commissioners of Assize are trying cases to reduce delays in the provinces until the Beeching reforms can be implemented. Acute shortage of court accommodation is one of the root causes of the present trouble.
Within a short time of publication of the Beeching Commission's Report—which, as the House knows, the Government have warmly accepted in principle —the Lord Chancellor enlarged the staff of his Department so that the problem of court accommodation could be tackled centrally instead of the matter being left, as it is now, to local authorities. Once circuit administrators are appointed following Beeching, they should be able to start work in co-ordinating sittings and planning the effective use of judge-power throughout the circuits. In the Bill there are several provisions which should help materially to reduce delay by saving judicial time which at present is wasted.
Clause 6 extends the power to dispose with the holding of assizes at certain

assize towns. Clause 7 will relieve some of the pressure in the Criminal Division of the Court of Appeal. Part III should also help to reduce delay. It implements recommendations made by Lord Justice Winn's Committee on personal injuries litigation designed to speed up the disposal of personal injury cases by making the parties lay their cards on the table at the outset. These cases comprise a large part of the business of the Queen's Bench Division, and they affect a lot of people, so that any provision which will ensure that they are not unnecessarily, prolonged will, I think, be very useful.
The Bill makes the first alteration to the divisions of the High Court for 88 years, by establishing the Family Division and redistributing the business of the High Court so as to concentrate in the Family Division family, domestic, and matrimonial business.
The Bill recognises the needs and wishes of the commercial community by establishing the Commercial Court and making provision for judges to undertake arbitrations of a commercial character.
As the House will have noticed, the greater part of the Bill is taken up with implementing recommendations made by Mr. Justice Payne's Committee, to which we are greatly indebted, on the enforcement of judgment debts.
I turn to the detailed provisions of the Bill, though I cannot undertake to turn to them all. We shall have to consider a great deal of technicality in Committee, but the House will forgive me if I endeavour to deal with some of it as I go along.
Part I relates to the High Court, assizes, and the Court of Appeal. Clause 1 affects the changes which I have mentioned in the divisions of the High Court by creating the Family Division out of the existing Probate, Divorce and Admiralty Division, that remarkable combination which is the product of history, and not of logic, and it redistributes the business of the High Court accordingly.
The jurisdiction of the new Family Division is set out in the First Schedule to the Bill. The jurisdiction at present exercised by the Chancery Division in wardship, guardianship, and adoption cases is now to be exercised by the Family Division. The High Court's


probate jurisdiction is to be shared between the Family Division and the Chancery Division so that non-contentious probate business will go to the Family Division, and the contentious to the Chancery Division.
The Chancery Division has long been the one most concerned with property questions and it has been the division responsible for determining all questions relating to the interpretation of wills. The Family Division is to concentrate on domestic matters, so it is appropriate that disputes concerning probate questions should be assigned to the Chancery Division. But as the greater part of probate business is essentially administrative and non-contentious, there is little to be gained—and much difficulty would be involved—in transferring all probate work to the Chancery Division. The Admiralty and Prize jurisdiction of the Probate, Divorce and Admiralty Division is to be transferred to the Queen's Bench Division, where it will be dealt with in the separate Admiralty Court established by Clause 2. The change is one in name only, and there will be no changes in the structure or personnel of that court.
The changes effected by Clause 1 are more than a change in name; they are a recognition of the importance of family and the need to ensure that any disputes that may unhappily arise within the family are dealt with in a sympathetic atmosphere by judges and officials who have the necessary experience and understanding to deal with them. This, we think, can be done only by concentrating all business relating to the family in one single division.
This concentration of business will enable attention to be given more easily to the important welfare aspect of this work—the welfare of every member of the family who may be concerned in any domestic case that comes before the courts. So long as the jurisdiction in family matters is scattered, as it now is, and often dealt with by judges and others between totally dissimilar kinds of business, it must be harder for those concerned to be familiar with welfare matters and to keep an eye constantly on them.
Clause 2 establishes the Admiralty Court as a separate court within the Queen's Bench Division. It is a court with an international reputation and 600

years of history behind it, and it is right that it should be retained as a separate entity. No changes in its structure or personnel are contemplated.
Clause 3 establishes the Commercial Court as a separate court within the Queen's Bench Division. The Commercial Court work of the High Court is a small, distinct and specialised part of its operation. There has been a separate commercial list since 1895, and so it may fairly be said that the commercial court has had some sort of separate existence already. Clause 3 recognises this. But there is one provision in that Clause which makes a change which has aroused controversy, although, curiously enough, it was hardly questioned when the matter was discussed in another place. This is subsection (3), which enables rules of court to provide that, in certain circumstances to be prescribed, a judge of the Commercial Court, if he thinks fit, may sit in private and dispense with strict rules of evidence. The Government fully recognise that these proposals require close scrutiny.
At this stage I would only say that when the arguments of public policy on both sides are properly balanced I think it will be found that the case is made out to justify modifying, in this specialised field, the more general principles and presumptions which apply to other parts of the legal system. Hon. and learned Members on both sides of the House will be keenly aware that down the centuries the common law has tended to decay and decline when it disregarded the needs of commerce, and to thrive when it showed itself willing to change and adapt itself to meet those needs.
As the 1962 Report of the very impressive Commercial Court Users Conference indicated, businessmen tend to avoid litigation in the courts because they dislike the formality and publicity of legal proceedings, so they often take their disputes to arbitration instead of going to the courts. It is desirable for many reasons, both legal and economic, national and international, that we should do what we can to attract commercial litigation into our courts. In genuine commercial cases the desire of the business community for informality and privacy is a legitimate one, which should be met so far as we properly can do so.
As the Lord Chancellor has said, however, since most proceedings are, and must remain, both formal and public, it is right that the special power in relation to the Commercial Court should be regarded and treated as a limited experiment. That is why the Bill itself makes no substantive provisions on these points, but merely confers power on the Supreme Court Rule Committee to make such rules as it thinks fit. There are two members of the Bar and two solicitors on that Committee who can reflect any views of the profession they represent. Rules of Court must, of course, be laid before Parliament, and are much more flexible and easy to amend in the light of experience than is an Act of Parliament.
There is insufficient work to justify the creation of a separate Division to deal with Admiralty and commercial business. The present Admiralty work of the Probate, Divorce and Admiralty Division occupies about half the time of a single judge, and the time taken by the whole of the commercial list takes even less. For this reason a Division dealing simply with commercial and Admiralty work would not be a viable entity and the Bill does not, therefore, provide for one.
Clause 4 enables the judges of the Commercial Court to take arbitrations where the dispute is of a commercial character. There is no rule of law prohibiting a High Court judge from sitting as a private arbitrator in his own time. However, unless the public interest indicated that a judge should act as an arbitrator it might be said that his doing so was inconsistent with his office. For this reason High Court judges who have been asked to sit as arbitrators have sought the advice of the Lord Chancellor, who has usually advised them to decline.
However, the report of the Commercial Court Users Conference recommended that the
commercial judge should have power to sit in private as an arbitrator,
and in recent years there have been further indications that there would be a demand for High Court judges to act as arbitrators in a small but important class of commercial disputes if they were available to do so. Clause 4 is intended to meet this demand.
The House will note that subsection (2) provides that a judge shall not accept appointment as arbitrator unless the Lord Chief Justice has informed him that, having regard to the state of business in the High Court and at assizes, he can be made available to do so.
Clause 5 recognises and regularises the position of the Senior Judge of the Chancery Division, who is to be known by the old title of Vice-Chancellor, which is now revived—so it cannot be said that we are unmindful of some of the names and institutions of the past—as the judge who is in practice responsible for the administration of the Chancery Division.
Clause 6 is one of the contributions which the Bill makes to deal with the critical problems of delay in our courts. The Beeching Report criticised the present poor location of assize courts and the resulting waste of judicial resources. Some of the assize towns were chosen in the reign of King John, and are really large villages. Between all these small places there has to be a travelling day, and a further travelling day at the end of an assize, which may only last a day. The Beeching Commission estimated that in some circumstances our total loss of judge time caused by the inefficiency of the present administration might be as much as 25 per cent. This Clause will enable the holding of assizes at any place to be dispensed with by Order in Council, and save a good deal of judicial time. I regret the disappearance of some of the assize towns as some of us who have enjoyed visiting them in the past will no doubt do. This reform is indubitably needed, quite apart from the Beeching Report. I should emphasise that there will be no question of assizes being closed at any place, either for all purposes or for a particular form of business, without my noble Friend the Lord Chancellor first discussing the matter with the local authority concerned. Thereafter the Order will be laid before this House.
Clause 7 is another contribution towards the husbanding of judicial resources. As hon. Members are aware, the Criminal Division of the Court of Appeal has been under considerable pressure in recent years as a result of the substantial increase in the number of appeals. The figures for 1969 for


instance showed that there was an increase of almost 1,000 applications for leave to appeal to the Criminal Division of the Court of Appeal that year.
Clause 7 will relieve the position so far as applications for leave to appeal are concerned in two ways. It will permit a court of two judges to dispose of applications which can currently only be disposed of by a court consisting of at least three judges. It will also make it clear that the "single judge" powers under the Criminal Appeal Act, 1968 may be exercised by any High Court judge.
At present applications for leave to appeal are dealt with by a single judge. If he refuses leave, the application may be submitted to a court of three judges. This means that three judges have to read and consider all the papers with a view to considering whether there is an arguable case for an appeal. Last year it was necessary for the judges of the full court to examine 8,013 sets of papers. The introduction of a two-judge court will result in a substantial saving of judge-power. I should, however, point out, lest there should be any anxiety that this represents some whittling down of the rights of appeal, that the powers of a two judge court are limited and that it will not have power to determine appeals.
The second part of the Clause enables the burden of the single judge to be shared by all the judges of the High Court. Whether they like that or not remains to be seen, but undoubtedly the judges of the Probate, Divorce and Admiralty Division have considerable experience in trying criminal cases and regularly deal with them at assizes. In addition, seven are chairmen or deputy chairmen of quarter sessions. It would, therefore, be quite wrong to leave this available source of judicial power unused at a time when the Criminal Division is under such pressure.
Part II of the Bill gives effect to recommendations in the Report of the Payne Committee on the Enforcement of Judgment Debts, relating to the abolition of imprisonment for debt and the introduction of attachment of earnings as a means of enforcing judgments for the recovery of money.
We are, I think, the only country in Western Europe where imprisonment for

ordinary civil debt has been retained. In Scotland, they have never had imprisonment for debt, not so much, I suspect, because they never run into debt, but because they have always had attachment of earnings. At present, the High Court and the county courts have power to commit a person who makes default in payment of a judgment debt to prison. However, the committal order can only be made where it is proved to the satisfaction of the court on the hearing of the judgment summons that the debtor has or has had the means to pay the debt.
The Committee found that the present system does not enable the debtor's means and circumstances to be properly investigated before the order is made. It found that the vast majority of debtors received into prison were
… inadequate, unfortunate, feckless or irresponsible persons …
in need of help rather than dishonest or plausible debtors who might merit imprisonment. It therefore concluded that it was undesirable to send merely inadequate persons to prison simply because imprisonment was a means of extracting money from the recalcitrant. It accordingly recommended that imprisonment for debt should be abolished.
It will, incidentally, be of considerable assistance in relieving overcrowding in our prisons, since it is estimated that at least 2,750 people would be kept out of prison each year as a result of these proposals. The House may think that that is indeed a valuable step.
The Committee was evenly divided on the question of whether the recommendation to abolish imprisonment for debt should be extended to default in payment of maintenance orders. The Bill retains committal to prison as a method of enforcing maintenance orders. The Committee found that, with few exceptions, all those from whom it had received representations were in favour of making attachment of earnings available for the enforcement of ordinary civil debts.
The Committee therefore recognised—I think that the House will probably be disposed to agree—that we could not abolish imprisonment without substituting another means of enforcement, and the attachment of earnings seems to be the best means which could be devised.
The Committee recommended that there should be a power to make attachment of earnings orders against any judgment debtor in respect of wages or salary. It is interesting, looking back upon previous consideration of this matter, to note that, in 1958, the trade unions objected very strongly to attachment of earnings. Now, the T.U.C. has reported, having consulted all the trade unions, that only one union has objected.
Turning now to the detailed provisions of Part II—perhaps the House should, even at this stage, look at this matter with some care, in view of its social importance—Clause 8 abolishes imprisonment for debt under Section 5 of the Debtors' Act, except in respect of maintenance, unpaid taxes, social security contributions or liabilities specified in the Fourth Schedule to the Bill.
The Payne Committee did not recommend the retention of imprisonment for Crown debts. The reason for retaining committal in respect of this liability is that it is of great use in the tax field against a small hard core of habitual defaulters. Imprisonment is the sole effective sanction and the threat of it has had remarkably effective consequences. In the year 1967–68, there were only 50 cases of imprisonment for tax debts, although the number of proceedings brought in respect of such debts in county courts or magistrates' courts was 39,000.

Mr. Alexander W. Lyon: How does this class of case differ from that of that small hard core of recalcitrant debtors in civil debts who find that imprisonment is really the only sanction?

The Attorney-General: The special position of the Inland Revenue in these matters, of course, is that it cannot, like a private trader, refrain from giving credit to a bad debtor. It must have an effective means of recovering from a debtor who, because he is not employed, has no wages from which taxes can be deducted under P.A.Y.E. If that explanation does not satisfy my hon. Friend, I am very sorry.
Clauses 10 to 24 provide for the making of Orders for the attachment of earnings. They are inevitably somewhat technical and complicated. The remedy of attachment of earnings is already available in the case of maintenance orders

under the Maintenance Orders Act, 1958, but the Bill does not retain the existing code under Part II of that Act. It was decided that it would be simpler for all concerned if this were replaced by a single composite code dealing with maintenance orders and with civil debts and liabilities. Clauses 10 to 24 set out that code.
Clause 11 specifies the persons who might apply for an attachment of earnings order and the circumstances in which an order can be made. Clause 12 deals with the effect and contents of an order. This is directed at the person who appears to be the debtor's employer and requires him to make periodical payments from the debtor's earnings in accordance with Part I of Schedule 5 and to pay them to the collecting office of the court at such time as the court may order. The scheme has been devised with a view to ensuring that the employer is given no more trouble than is absolutely necessary. Instructions giving as simple an explanation of the scheme as possible will be issued to employers so that they will understand what is required of them under it.
So far as the employer is concerned, the scheme is broadly the same as that which exists at present under the Maintenance Orders Act, 1958. The order will give the employer the debtor's name and sufficient particulars to enable him to comply with it. When the first pay day after the order comes into force arrives, the employer will calculate the debtor's "attachable earnings", that is, his gross earnings less the usual deductions for tax, National Insurance and so on. This is a calculation which the employer will have to do in any event. He will then have to calculate the "normal deduction"—the amount deductible on the normal deduction rate—that is, the rate determined by the court at which the debtor's earnings should be applied to meet his liabilities under the order.
Finally, the employer will have to calculate the "protected earnings", having regard to the protected earnings rate, that is to say, the rate below which the court considers that the debtor's pay should not be reduced by the attachment of earnings order. So long as the "attachable earnings" exceed the "protected earnings", the employer will pay the difference up to


the maximum of the "normal deductions" to the court. Before making this payment, he will be entitled to take 1s. towards the cost of his clerical and administrative expenses. In the case of maintenance and liability arising in criminal cases, any arrears will be carried over to the next pay day as under the 1958 Act.
Clause 14 precludes a debtor from pursuing other remedies during the currency of an attachment of earnings order.
Clauses 13, 15, 17 and 18 facilitate the enforcement of attachment earnings orders, and make a valuable contribution towards their enforceability against elusive debtors.
Clause 13 imposes an obligation to comply with an order on an employer if the debtor is still with him. The employer does not have to comply with the order as soon as it is served on him. He is allowed seven days to do so without incurring any liability by subsection (1). This enables him to make the necessary arrangements for the necessary deductions to be made before pay day. If the debtor leaves his employment subsection (2) obliges the employer to notify the court within ten days thereby enabling some track to be kept of the debtors movements.
Clause 15 provides for the variation and discharge of orders and makes a specific provision for the case where a debtor changes his employment. In such a case subsection (4) provides that the order simply lapses until it is directed to the debtor's new employer. The order does not terminate on a change of employment as it does under the 1958 Act.
Clause 17 enables the court to require a debtor or any person employing him to supply information as to his employment earnings and commitments.
Clause 18 obliges the debtor and his employer to notify the court as to changes in his employment. This clause gives effect to the recommendations of the Payne Committee that the debtor against whom an attachment of earnings order had been made should be under a legal obligation to do so, in order to facilitate the redirection of the order to a new employer.
Clause 21 enables a county court to secure the attendance of the debtor on an application for the attachment of earnings and provides penalties for failure to comply with it. It also makes it an offence subject to certain defences for an employer to fail to comply with any requirement of the Bill concerning attachment of earnings orders. There is one further matter in connection with this part of the Bill. The Payne Committee referred to the problem of unreasonable harassment of debtors and mentioned devices of various kinds by which—and it may come as a surprise to the House to learn—in some cases these debt collectors seek to recover sums due to creditors. It listed some of them.
One is called the "blue frightener", a printed notice of the creditor's intention to institute proceedings in the county court. It is printed in black letters on blue paper apparently so as to simulate a county court summons with which some unfortunate debtors may already be familiar.
Then there is the "red frightener", which is a thoroughly sinister object. It is a printed notice in red letters on white paper under the rubric "You have four days in which to reduce your debt".
Then there is the strategy of making frequent calls to the debtor's home, leaving threatening cards or informing the neighbours or shopkeepers under the guise of seeking information. There is also the threat of painting a motor car with a statement that it is the property of the creditor, writing to the debtor's employer or making threats to send a bad debt collection man and other undesirable methods of harassment of that kind.
No one would wish to deny that there are reluctant debtors whom it is hard to persuade to meet their obligations. But the problem of unreasonable harassment is, as the Payne Committee showed, a real one which ought to be tackled. An Amendment was moved in another place in Committee to deal with this. My noble Friend, the Lord Chancellor, sympathised with the purpose of that Amendment and, when it was withdrawn, so that its contents and drafting could be further considered, it was understood that an Amendment would be moved at a later stage of the Bill. The Government attach some importance to this and I am glad to be able to tell the House that, as


the result of the discussions which have taken place, I expect to be able to move an Amendment in Committee to deal with that kind of harassment.
Part III of the Bill gives effect to recommendations made by Lord Justice Winn's Committee on Personal Injuries Litigation about what is commonly known as "third party discovery". As the House may know, discovery is a means by which a party to litigation can require his opponent to disclose any documents which he has in his possession relating to the matters in issue and to produce them for inspection. But an order for discovery can be made only when proceedings are pending and it can be made only against another party to the action. The Winn Committee thought that in personal injuries cases it ought to be possible to obtain an order before any proceedings are begun. It also thought it could sometimes happen that a person other than a party might have in his possession a document with an important bearing on the case. It might, for example, be a medical record kept by the hospital where the plaintiff had been treated, or a report made by an expert on some machine which the plaintiff was operating at the time of the accident. The Committee accordingly recommended that the court should have power to make an order for discovery on an application made before any proceedings had been commenced and that it should be possible to obtain an order against a person who was not likely to be a party.
Clause 23 and subsection (1) of Clause 24 give effect to these recommendations. The first enables the court, before the commencement of proceedings for personal injuries, to order a person who is likely to be a party to the proceedings to disclose any documents which are relevant to any issue likely to arise out of the claim. This does not go quite as far as the Winn Committee suggested, because it does not enable an order to be made against a person who is not likely to be a party to the proceedings. It seemed to me that it might be oppressive if a stranger could be put to the trouble of searching for and producing documents simply to assist in the prosecution or defence of a claim which had not yet been formulated in legal proceedings. Subsection (1) of Clause 24 does, how-

ever, enable an order to be made after the commencement of proceedings against a person who is not likely to be a party to the proceedings.

Mr. Raphael Tuck: I think my right hon. and learned Friend will find that Clause 24(1) deals with other provisions for the interpretation of Part II.

The Attorney-General: My hon. Friend is perfectly right. It is probably Clause 28(1). I am much obliged.
Clause 28(2) gives effect to another recommendation of the Winn Committee, enabling a similar order to be made for the inspection, photographing and preservation of property and such like. I am sure that these provisions will be helpful. We have all in our experience and practice known of cases, for example, of factory accident and of a machine said to be unguarded. Before proceedings can be started and formulated, when solicitors go to the factory they find in some cases that the machine has already been removed, because it is under repair or for some other reason, which makes it impossible for the plaintiff's solicitor to have access to it, and no one has taken a photograph of it. In cases of that kind, these provisions should be helpful.
Part IV deals with actions by mortgagees for possession of mortgaged property. This Part is based on the recommendations of the Committee on the Enforcement of Judgment Debts, which was asked also to consider
whether the courts should have power to postpone the operation of an order for possession of mortgaged property".
In general terms, the Committee recommended that, although a mortgagee might have a legal right to possession of mortgaged premises, a court asked to order that he should be given possession should be entitled to adjourn the case so as to give the mortgagor time to pay. This could be of great assistance to a mortgagor who found himself temporarily in difficulty.
Clause 32 gives effect to that recommendation by providing that the court shall have power in an action for possession by a mortgagee to adjourn the proceedings or to suspend the order so as to give the mortgagor time to pay.
Clause 33 gives the county court exclusive jurisdiction to hear actions for possession by mortgagees in cases where the rateable value of the premises is within the county court limits in the case of premises outside Greater London. In the case of premises within Greater London the High Court is obviously the most convenient place for them, and the Bill does not make any changes in this regard.
Part V makes provision for a number of miscellaneous matters, including the payment of costs in criminal and analogous cases and the enforcement of fines. I do not think that I need deal with those matters at this stage.
I am grateful to the House for the patience with which it has listened so agreeably to so much technicality. No doubt, there will be much to study when the Bill goes to Committee. In the meantime, I commend it to the House.

4.51 p.m.

Sir Peter Rawlinson: I guess—it can be only a guess—that this will be the last Administration of Justice Bill which we shall hear the right hon. and learned Gentleman the Attorney-General present to the House of Commons. [HON. MEMBERS: "0h."] I say that for this reason. Either he may be in what Disraeli called the Elysian Fields of another place, where he may be the author as opposed to the agent of such legislation, or, alternatively, he may be on these benches, when he will have the consolation of being able to command the fees which a former Law Officer of the Crown is able to command.
As I guess that this may well be the last such occasion—certainly, I could be wrong—I take this opportunity to thank the right hon. and learned Gentleman and to congratulate him for the way in which he has always presented complex Bills to the House, with great skill and clarity and usually enlivening the presentation with some anecdote or other to make the occasion more memorable.
On these occasions, I always have the feeling that, somehow, the House looks as though it is in church—perhaps that is because of the small numbers present —but, nevertheless, we have before us in such Bills matters which call for careful explanation, and we are extremely

grateful to the right hon. and learned Gentleman for the way in which he presents them to us. The present Bill is no exception.
I come now to a criticism which I direct not so much to the right hon. and learned Gentleman as to the managers of Government business. This Bill, like the Matrimonial Proceedings and Property Bill and the Animals Bill which is to come later today, started in another place. All of them, by their nature, are of interest and concern to a comparatively small number of hon. Members, but Members with, perhaps, like interests and like expertise. Hon. Members with those special interests and concerns would wish to serve on the Committee and contribute to the debates.

Sir David Renton: On each of them.

Sir P. Rawlinson: As my right hon. and learned Friend says, on each of those Bills. The Government's organisation of business prevents that happening. I have not yet recovered from the gallop which I used to do from the Grand Committee Room up to the Committee Corridor when I was serving on two such Bills. It is a matter of grave dissatisfaction that the managers of Government business have put the same imposition upon us again.
All of us, as Members of Parliament, constantly receive criticism about the form of legislation. Since I have had certain responsibilities in these matters on behalf of the Opposition, I have sought to treat legal Bills not with a partisan approach but with the aim of ensuring that we could all put our heads together, and sometimes our expertise, to try to make the best of them.
Our work in Committee on these Measures is of considerable value. On the present Bill, when the right hon. and learned Gentleman the Attorney-General got his pagination slightly wrong, I suspected that the reason was that those assisting him had looked at the original Bill, which was 46 or 47 pages long, whereas when it emerged from the other place it covered 55 pages. That is the sort of thing that happens during the passage of such Measures under a Parliamentary programme organised as it now is. The fatness of a Bill is not necessarily


a sign of its virtue, but there is nevertheless a lot to be dealt with here in an effort to put everything right. If the Government believe in the processes of Parliament and the spirit in which such Measure should be approached, I wish that their business managers would arrange things better.
I pay tribute here to what was done in another place, in particular, to the work of the noble Lord, Lord Colville of Culross, in assisting, under great difficulties, in the consideration of so much of the Bill.
On the Second Reading of a Bill such as this, which is an amalgam of different matters, it is sometimes difficult to know exactly how to aproach it. To adopt some words from "Animal Farm", some parts of the Bill are more equal than others. The range of subjects covered includes the organisation of the High Court, rules as to evidence, principles governing when the High Court should sit in private, provision for a new Law Officer, the power to dispense with Assizes, the organisation of the Court of Appeal in criminal matters, the enforcement of debt, mortgages, discovery, fines, the county courts, rent legislation, guardianship of minors, children and young persons, and so on. It is all in one Bill presented to the House of Commons for Second Reading.
One has, therefore, to direct one's mind to many different classes of subject. For my part—I am sure that other hon. Members will feel the same—I approve of some parts of the Bill and disapprove of others, and I look forward to further investigation of others still.
First, I take Part I, and I begin with a criticism. One of the reasons for the Bill given by the Lord Chancellor in another place was that our administration of justice now is in such a state that the organisation and administration of the courts is of the highest importance. The Attorney-General referred to the Report of the Royal Commission, the Beeching Report, saying that the Government express approval of it. It was a major Report, but not yet has the House had opportunity to debate it. In the other place, the Lord Chancellor observed that the Opposition had their opportunities, that there was Opposition time, through their Supply Days, to deal with it. That shows a strange misunderstanding of the

processes of Parliament. On a major Report affecting the administration of justice, it is nothing short of disgraceful that the House of Commons has not had an opportunity to debate it. It requires Government explanation and commentary. It is their duty to put this matter before the House, and not introduce it in bits and pieces in different Bills. We should be able to examine it in its entirety.
I say that by way of introduction, because part of Part I deals with certain reorganisation for the purpose of helping the speedy administration of justice. As the Attorney-General said, it is 80-odd years since the structure of the courts was last examined. The pressure on the courts is such that, in 1970, there are something like 300 more cases in the Queen's Bench Division than there were in 1969. That is an increase of about a sixth. In the Chancery Division, there are 23 more suits in 1970, which is an increase of only a fifteenth. In the Probate, Divorce and Admiralty Division, there is a drop of 331, about a third, because of the provision whereby the county courts deal with non-contentious divorce. There is a large increase in the Queen's Bench Division, a small increase in the Chancery Division, and a large decrease in the Probate, Divorce and Admiralty Division.
The utilisation of judges is of the utmost importance. I imagine that the Attorney-General has had presented to him the suggestion made by the Chancery Bar that consideration should be given to the whole structure of the courts beyond that proposed in this Bill, including whether it would not be wise to divide the High Court into two parts, the first dealing with status and property and the second dealing with what might be termed the more ephemeral collisions of tort, defamation, personal injury and matters of contract, which would go to the Queen's Bench Division, together with Admiralty and Commercial matters.
With the setting up of the family court, the proposal for which I welcome, the Chancery Bar has made its interesting proposal that we should have the division into two. It illustrated it by saying that a claim against a deceased husband will be in one division if the woman is a widow, but that if she is a former wife the claim will be in another division. A settlement will be awarded in the Chancery Division if there is no


divorce, but in the Family Division if there has been a divorce.
There is force in some of the Chancery Bar's comments that this may be the time to have a deeper examination and study of whether we should not have a more major division of the business of the High Court. For the moment, as I have said, I welcome the family court and I welcome, too, the appointment and title of Vice-Chancellor. I can only reflect about "Law Reform Now", which was a book published several years ago. Then there was to be a Vice-Chancellor in the Commons. Your predecessor in the Chair, Mr. Deputy Speaker, at one time held the office, though not of that name, of Minister without Portfolio. That is another illustration of the need to restrain criticism of the Government when in opposition and vice versa.
I turn now to the Commercial Court, which has caused considerable controversy. The right hon. and learned Gentleman said that it was not raised in another place, though it had been made clear by me and others of my right hon. and hon. Friends that we did not like this court sitting in secret. Everyone interested has probably read the letter to The Times by the Chairman of the Bar Council and the President of the Law Society. It emphasises an important point of principle, which is the principle of public justice. It is one of the reasons for the establishment of the high standards of confidence, integrity, conduct and bearing among our judges that we have always insisted upon public justice. It is breached at one's peril.
Hon. Members who served on the Standing Committee which considered the Criminal Justice Bill will recall many discussions about whether it was right to have even committal proceedings in private. Some of us thought at one time that it would be right and then changed our minds. Others took the opposite view.
In my opinion, secrecy is alien to the spirit of justice. Why should it be so important for the users of the Commercial Court? If it is important for them, is it not more important for two persons who appear before a matrimonial court to be entitled to have the intimacies of their marriage discussed in private? They are not so permitted. It might be even

more sensible to hear a libel action in private. Then again, there are many parties to contracts, just as there are involved in personal injuries. On one side, there may be parties who do not want their system of work brought before the public eye. There may be a plaintiff who does not want the injuries which he has sustained made public. In each division there is a case for having matters heard in private. Why is it so important for cases heard in the Commercial Court? It is argued that, otherwise, the parties will go off and find an arbitrator. I would say, let them go and find their arbitrator. This is a matter about which we should insist. The powers which the courts have should not be extended, and I hope that some amendment will be made in Committee.
The Attorney-General says that this is only giving a power and that there are the rules of court. I am reminded of the Matrimonial Causes Rules, 1967. When we debated the Bill in 1968, we were told, "Leave it to the Rules Committee, which has independent people on it in the shape of two members of the Bar and two solicitors". When the time came for the Rules Committee to make its decision, it was told, "You cannot do that. Parliament has decided the principle." It was told by the Lord Chancellor that it must do what he required. That was legislation on the ipse dixit of a Minister, the Lord Chancellor, and determined by the length of his foot.
There was consternation in the legal profession and among the members of the Rules Committee. We debated it in Parliament. It is not right for Parliament to allow itself to be put in such a position.
In the letter to which I have referred there is quoted part of what Lord Shaw said in Scott v. Scott:
There is no greater danger of usurpation (of the principle of public administration of justice) than that which proceeds little by little under cover of rules of procedure and at the instance of the judges themselves.
The court serves the customer, and not the other way round. However, the customer does not make the rules. If he comes to justice in the Queen's court, he should come to public justice or not at all.
I share with some of my right hon. and hon. Friends a liberal attitude to the rules


of evidence. I welcomed the Civil Evidence Act. Like the Lord Chancellor in another place, I query the need for a law of evidence save in its rudest form. If the rules of evidence are to be removed, why do it for one court only? Either it should be changed for all courts or for none. The burdens of proof are similar. How can the burden of proof be discharged satisfactorily on a lesser kind of evidence in one court and not in another? Here, too, there is muddled thinking about principle. It is an over-pragmatic approach resulting from a desire to attract to the court various customers who would be better suited elsewhere, and there receive their arbitration.
Is the appointment of a judge arbitrator a realistic provision? We have been told, and rightly, that judges are needed all over the country to deal with criminal and civil business. Are we now to have a judge hired to private parties? I believe that it is frivolous to include this provision as one of the many afterthoughts of the Bill, and a very strong case will need to be made out for such a requirement at this time.
Clause 7 relates to the criminal division of the Court of Appeal. This, too, is an afterthought introduced into the Bill in another place because of the increase in the number of appeals from about 8,700 in 1968 to 9,700 in 1969. I suggest that this increase is due, in the first place, to the removal of the power of the Court of Appeal to increase sentence and to order that the time spent awaiting appeal should not count towards sentence.
Those sanctions were removed by Parliament, and I and a number of other right hon. and hon. Members gave warning at that time of the effect. The result has been that the court has been swamped with worthless appeals, and an extra burden put on the judges just when they are most needed for trial work. The power to increase sentence, though rarely used, was a reserve power, and its effect was to deter appeals by people who really only wanted the privileges which can be enjoyed while awaiting appeal and before the appeal is dismissed. That power has gone.
I suggest that the situation might be improved if the certificate given to an accused person for legal aid for his defence at trial should, once granted, auto-

matically include a right and a duty on solicitors and counsel to advise on an appeal if the trial verdict is one of guilty. If that were put on the actual certificate, there would be no need for the prisoner to apply, or appeal or write. It would put an automatic duty on his lawyers, and would avoid the difficulties arising under Rule 52 to which the Lord Chief Justice referred.
With that provision I would combine a provision that every convicted person should be given only a specified period after conviction—say, 14 days—during which he would be entitled to that special treatment which the Lord Chief Justice described as an act of humanity. During that period only he could write and receive letters and have visits in particular circumstances, but would thereafter be subject to the ordinary prison treatment. That would eliminate those persons who appeal merely because it gives a period of special treatment.
The present position is that because of the priviliges involved, a man gains even if his appeal is ludicrous. I believe that to be one of the reasons why the criminal division of the Court of Appeal is being flooded. Some more radical approach should be made. We should be able to ensure that no appeal is made for the wrong reason but only for the true reason for which an appeal ought to be made: and that it is made on advice.
The recommendation on matters of discovery seem to be most sensible. I am uncertain, with regard to preservation, whether a third party is to be put to any expense or inconvenience in the storage of machinery or tools which may be necessary or needed for the trial. I presume that in such cases provision for costs could be made.
I certainly accept the general principle contained in Part IV. Courts should be given powers of discretion.
In turning to the question of the enforcement of debt, I join with the right hon. and learned Attorney-General in paying tribute to Mr. Justice Payne and his colleagues for their great labours in producing this report. I would ask the Attorney-General, though I do not seek an answer today, how many judges are having to be seconded from their very important judicial duties to do such work on such committees. That work is very important, and I agree that they are


the ideal people to chair such committees, but in view of the present crisis it would be interesting to know how many judges are being engaged on extramural activities of this kind. One wonders whether it would not be wise to drop this secondment at present, if it is possible, and let the judges concentrate on their judicial task.
The principle of the abolition of the sanction of imprisonment has important attractions. It is not wholly appropriate. Imprisonment has never been a sanction in Scotland. The learned Attorney-General gave some explanation for that. He did not suggest that it was due to national characteristics—that credit was not so easy to get or extravagance so common in Scotland, which was the thought that sprang to the minds of some of us when we thought of Scots getting into debt. But imprisonment was a sanction, and its abolition will relieve our prisons to the extent of about 2,000 persons. The very fact that it is being retained for the Inland Revenue and the Crown shows that it is still a sanction. For only a small minority—about 2,000 —it did not work as a sanction: those people went to prison. One cannot therefore say that it was not the best means to make that debtor pay who was wilfully not paying.
That sanction is now given up, and we are putting on employers an obligation to play a part, such as they now play in relation to maintenance orders, in the private affairs of their employees. We are imposing on them very considerable administrative work, and I hope that due acknowledgment will be given to them for taking it on. It means an immense saving for the courts and for taxpayers, and I pay my tribute to the employers for doing this work.
It is an imposition, in particular, on employers in such trades as the building trade, with its mobile workers. I know that since the passing of the maintenance orders legislation such employers have often experienced very considerable difficulties in doing what it is thought they should do. They are now having further burdens put upon them, for a ludicrously low charge of one shilling. The proper sum really ought to be about 5 per cent. of the amount of the debt, which is the percentage allowed by the unions to the

employers for the deduction of dues. I have had brought to my attention by some employers that they hoped the trade unions appreciated that this was being imposed on them. They were concerned in regard to industrial relations, and it is important that they should know they are taking on this task imposed upon them by Act of Parliament.
The fact that these employers have to do this if there is attachment of earnings is the only way it can be done. The concern is how it could be done under this Bill and that the whole of the Payne recommendations have not been carried out. The enforcement provisions in Northern Ireland, an area which comes in for some criticism in certain parts of this House, have been accompanied by the setting-up of a central office and a system whereby creditors pay an enforcement fee. The creditor in any bankruptcy proceedings is assisted and there is an order requiring employers to deduct. The penalty of prison is retained only until they see that the new system works. Here there is not an enforcement officer. Is this scheme premature? Will the machinery and the staff prove adequate?
I say to the Attorney-General that with some reluctance I accept that this is the best alternative to prison, but I doubt how necessary it was to introduce it now and why this priority was given at this particular time. Of course people can be caught by unscrupulous traders. We all know about the small print. Everyone should be very careful about reading the small print, particularly those who have now reached the age of maturity. People should have every opportunity of being told to be on guard. Nevertheless, it is a matter in which the attachment of earnings and removal of sanction have to be carefully watched to ensure, first, that the system works properly, and, secondly, that it achieves its objectives.
This is a Bill of many parts and, therefore, any speech on Second Reading has to be the same. My impression is that it is an interim Measure nibbling at various problems and reorganisation is a first step to what might be a wider change. On the subject of attachment, there are questions which have to be answered. I have certain reservations. I think this is the Bill of a man in a hurry, and probably of a Government in a hurry.


Some of its provisions may be useful and right in principle, and some I wholly reject. Because I do not reject all, I certainly will not oppose the Bill on Second Reading.

5.24 p.m.

Mr. David Weitzman: The right hon. and learned Member for Epsom (Sir P. Rawlinson) introduced a facetious note by suggesting that this was the last Bill my right hon. and learned Friend the Attorney-General would introduce. There is nothing like cherishing a forlorn hope.
In its essentials I welcome this Bill. It reconstitutes the High Court in a manner necessary after the long years of its existence. The idea of a family division covering almost every type of jurisdiction of a family kind as set out in Schedule 1 of the Bill is an excellent idea. The only criticism I make is that it has not been found practical in the initial instance to start at the lowest tier and to bring into being a local family court. This is particularly important when one remembers the varied matters with which magistrates' courts deal, particularly with regard to criminal matters.
I am however heartened by the words of the Lord Chancellor in another place that:
the fact that we are now getting a family division of the High Court will stimulate thought into giving us a really local family court so that family matters no longer have to be taken in what used to be called the 'police courts'."—[OFFICIAL REPORT, House of Lords, 4th December, 1969; Vol. 306, c. 257.]
The implementation of one of the recommendations of the Beeching Royal Commission in the provision with regard to assize courts is also welcome. No one listening to the words of my right hon. and learned Friend, reading the speech of the Lord Chancellor in introducing the Bill in another place, or recognising the difficulties referred to by the Lord Chief Justice, can doubt the urgent need for this provision. My hope is that before long other recommendations of the Commission with regard to assizes may be implemented.
Stautory recognition is now given to the commercial court which first began, as the Attorney-General said, in 1895. I had the honour of being a pupil of the late Theobald Mathew, a well-beloved figure, the son of the first judge

of that court and the first editor of its law reports. Perhaps because of that I have always been interested in the work of the commercial court. It is right that there should be a special court to deal with the complex problems of the commercial world. It is right also that, in so far as it can be done without offending the fundamental principles of open justice, the rules of evidence should be relaxed and in certain instances the court should sit in private. I very much support what the right hon. and learned Member for Epsom said on this matter.
As was pointed out in the forceful letter of the Chairman of the Bar Council and the President of the Law Society in The Times yesterday the parties are already at liberty if they agree to admit facts without any evidence at all or to accept less strict proof of facts. There is an inherent power in every court to sit in private if justice cannot otherwise be done. I agree with the criticism that to leave such powers to be exercised in accordance with rules made by the Supreme Court Rules Committee is certainly a departure from constitutional principles. After all, if businessmen desire to have their disputes heard in private they can do so by arbitration. The Attorney-General put forward economic reasons as one of the reasons for this provision. Some money might be gained from it. What an extraordinary thing it is to sacrifice a fundamental principle because of some economic consideration.
I was somewhat amazed to read these words of the Lord Chancellor:
I have come to the conclusion that we would be better without any law of evidence at all. I do not believe it is necessary.
As an old advocate I recognise that most of the rules of evidence have sound reasons for their existence. No doubt there are some which can be amended or even abolished, but to say that there is no need for rules of evidence seems a startling proposition. It may well be that other systems of law do not have them, but one of the things we pride ourselves upon is that our legal system is an example to the world, and in my view the law of evidence plays no small part in that. I have grave apprehension about this power given to the Rules Committee to formulate rules enabling the commercial court to admit evidence otherwise


inadmissible or to sit in private as provided by Clause 3. I hope that this provision will be thoroughly debated in Committee and amended if it is not thought satisfactory. I support very strongly the criticisms made by the right hon. and learned Member for Epsom.
I want to say a word or two about Part II which deals with enforcement of debt. Everybody, I think, will applaud the decision to abolish imprisonment as a means of enforcing the payment of civil debts. I do not, however, understand the logic of preserving this sanction in the case of maintenance and Crown debts, for example tax and social insurance. I suppose that my right hon. and learned Friend will say that the Inland Revenue is a holy institution and we must do something in regard to it—[AN HON. MEMBER: "A sacred cow."]—but why in logic are debts owing to the Crown different from civil debts? I cannot see the logic of separating one from the other. I hope that we shall look at this matter in Committee.
I have studied carefully the codes set out in Schedules 5, 7 and 8 of the Bill, dealing with the machinery on attachment. They are complicated provisions. They impose considerable burdens on the employer, the debtor and the court. I hope that they work. But it is to be noted that breaches of Clause 21 are punishable by fines and imprisonment. Therefore, we are retaining imprisonment to some extent. I cannot help but feel that there is a real danger that all sorts of difficulties will arise.
It is rightly said that county court registrars and their staff are extremely considerate to debtors and give them valuable advice when they are in trouble. There are citizens advice bureaux. There are voluntary welfare authorities. In addition, there are Members of Parliament who assist in advising their constituents. But registrars and their staff are already overloaded with work, and reliance upon voluntary workers is a very doubtful factor.
The Payne Committee, in its excellent Report, recommended the appointment of enforcement officers with a social staff. I appreciate the arguments against implementing that recommendation now —the suggestion that registrars and their staff can do the work; that judges will

be able patiently and thoroughly to do justice to debtors; the cost of such a plan; and the order in which the recommendations should be brought into being. However, I feel that the system evolved, the code drawn up, is so complicated and is fraught with so many difficulties that further consideration should be given, even at this stage, to instituting some enforcement system which might lighten the burden on the court, the employer and the debtor.
The right hon. and learned Member for Epsom referred to the system in Northern Ireland. It might be a very good idea to look at that system and to see whether there is any reason why we cannot implement something of that sort. It would be a great pity if a well thought out scheme should result in injustice because of its complications.
I should like to say a few words about Clause 27, in Part III, implementing the recommendations of the Winn Committee. In my view, this is a very valuable new right. Often, before an action is brought, documents may be destroyed or property or machinery vital to the case may be removed or altered. A would be litigant will now have the right, in a proper case, to see such documents or inspect such property or machinery before action. This provision may well assist in preventing unnecessary litigation.
I wish to say something about Clause 32, which gives the court power in an action by the mortgagee for possession to adjourn the case or to stay or suspend execution of judgment so as to give the borrower an opportunity to make good his default. In too many cases a borrower making default has lost his property without being given such an opportunity. The other day, I had the case of a constituent. a West Indian lady, who had been deprived of all her possessions as a result of an action brought by the mortgagee.
My only criticism is that the provisions should be extended to foreclosure proceedings. It is true that in such proceedings an order for foreclosure nisi gives the debtor an opportunity of paying and that there might be a delay of some months before the order is made absolute or not reopened, as it can be in some cases. There may be cases in which even this period is not sufficiently long for the borrower to repay the debt. I do not


see why the Clause should not apply to such proceedings. It surely can create no injustice.
Finally, in another place, it was sought to introduce in the Bill a Clause making it an offence to harass or interfere with the peace and comfort of the debtor. As my right hon. and learned Friend the Attorney-General pointed out, this problem was discussed by the Payne Committee. It is extremely important. The Payne Committee heard a considerable amount of evidence and was unanimous in concluding
that some practices are employed with the object of instilling fear and panic in debtors, causing them injustice and driving them to desperation in trying to pay off their debts".
The Committee added:
Such creditors disdain the law and endeavour to bypass it by using strong-arm tactics or cunning devices. In our view, it cannot he tolerated that just claims be pursued by unjust methods. It must not be forgotten that the debtor class includes many who, by misfortune or mischance, have drifted into debt and are peculiarly exposed and vulnerable to the methods which we condemns".
The other day we discussed the Inertia Selling Bill, which is akin, but here there is a real problem. I was glad to see when reading the report of the discussion in another place that the Lord Chancellor was sympathetic and that the Home Office and draftsmen were interested. I am glad to hear that my right hon. and learned Friend the Attorney-General is to introduce an Amendment to deal with this problem. It is one of the most important problems with which we have to deal.
Obviously a considerable number of points must be discussed in Committee. Subject to those, I welcome the Bill as a sound and necessary Measure. In my view, it is another step forward in the Government's laudable object to secure legal reform.

5.37 p.m.

Mr. Daniel Awdry: In general, I welcome the Bill. I wish to say a few words on Part II relating to the enforcement of debt. I am delighted that at last we are to abolish the old-fashioned process of asking county court judges to send debtors to prison. We should go the whole way and take in all debts, including debts for income tax. I have attended the county court many times when an hour or two of the court's

time has been taken up with these melancholy proceedings. In most cases they have become time-wasting factors and are often deeply humiliating for many people who have fallen on hard times through no fault of their own. All county court judges and practically all solicitors will welcome the fact that we are to do away with this. It should have been done years ago. However, better late than never.
I support the provisions to extend the enforcement of debts by the attachment of earnings. I am particularly glad that they will apply to people who have not paid their fines in criminal cases. Many people who have been convicted in criminal cases—and I refer chiefly to petty criminal cases—are snapping their fingers at the courts. I recently read in a Sunday newspaper that today over £5 million is owed in unpaid fines. Apparently the figure increased over the last 18 months by more than £1 million. This reveals a very unsatisfactory state of affairs.

Mr. Arthur Lewis: is the hon. Gentleman aware that it is commonly said among this class of people, "If you do not want to pay your fine, particularly for motoring offences, do not pay it, because no further action will be taken against you"?

Mr. Awdry: I agree. That is my point. The law will be brought into utter disrepute if something is not done about this matter.
I ask the Attorney-General to tell us how many people are involved in this. How many convicted people have not bothered to pay their fines? Last September, the figure of unpaid fines in England and Wales, outside London, was over £4,500,000. I think that I can say with certainty that the figure is proportionately higher in London. Perhaps the right hon. and learned Gentleman will say whether he feels that the Bill goes far enough to help the courts to deal with this problem. Does he think that more staff would be needed to help the hard-pressed magistrates' clerks in dealing with this immense problem? It is urgent, as the hon. Member for West Ham, North (Mr. Arthur Lewis) emphasised.
Unless something is done soon people will conclude that crime pays, and this will bring the whole of our system into


disrepute. I hope that the Attorney-General can give us some comforting words on this when he replies.

5.40 p.m.

Mr. Roland Moyle: I apologise to my right hon. and learned Friend the Attorney-General for not wanting to comment on the many interesting matters he raised in introducing the Bill, except to say that when he replies I shall be particularly interested in what he says on the question of the privacy of commercial courts. I am not quite satisfied yet that he has made a good case for the practice he proposes.
I want to draw attention to what I consider to be an omission from the Bill. It was recently brought to my attention that if a litigant appoints a lawyer who represents him in arguments before the courts and establishes his case, he is entitled to the full recovery of his costs, subject to taxation, but that a litigant who takes his own case through the legal system and succeeds in establishing it fails to get costs on probably the most substantial item he has incurred—his own time and labour spent on the case. This seems to me to be a considerable injustice, and I am disturbed that the Government has not taken the opportunity of the Bill to remedy it. It is not an injustice that is important in terms of the numbers involved, but it is important in terms of the quality of our law and equality before it. It is a matter that the Government should consider.
As the New Law Journal put it very succinctly in an article in May, 1969:
If a litigant in person loses he must pay the other side's taxed costs in full; but if he wins he will be deprived on taxation of the costs that would otherwise have been allowed in respect of time and labour spent on the case.
As with so many points of principle raised in the House, this matter was brought to my attention by the experience of a constituent, although this is in no sense a constituency matter, because my constituent's case has been adjudicated upon, and in any case the gentleman concerned, Mr. Buckland, died tragically in a fire which destroyed his home a few months ago. But to illustrate the problem I have in mind perhaps I could give the House the outline facts of the case, which are relatively simple.
My constituent wished to buy a house and, being a prudent man, engaged to advise him in the transaction not only a solicitor but a valuer. The valuer pronounced the house to be in excellent condition, but when the transaction had proceeded some little way it was discovered that it was not. Every possible thing that could be wrong with it was wrong with that house. So my constituent brought an action in professional negligence against the valuer and the solicitor. Being a prudent man, he decided to conduct his case himself in view of the effects of taking professional advice which had already been demonstrated to him earlier in the transaction.
Although he lost his case at the county court, he showed sufficient acumen to establish it in the Court of Appeal. But then he might well have muttered with King Pyrrhus
Another victory such as this and I will be a ruined man
because he was not given costs for the time and labour he had spent on his case, and found himself out of pocket.
But he fought his case on the question of costs right through again to the Court of Appeal. It rejected his claim, and the House of Lords refused to give him leave to appeal. In all the reasons given for refusing Mr. Buckland his costs, nobody quoted the proposition that it would be unjust for litigants in person to claim their costs. Numbers of reasons were given, and I will not deny that they have some weight. It was said that a lay litigant's time varied considerably in value. The typical example quoted was that at one end of the scale one might have someone earning 3s. or 4s. an hour and at the other end a pop singer earning £1,000 a week. The question then asked was, "How are you to assess this cost?" It is also said that lay litigants are a small number of people, and successful lay litigants an even smaller number. This may well be true, but it is a most unsatisfactory reason for any principle of justice to which our courts may wish to put their name.
Finally, it was asserted that costs were intended to remunerate the exercise of professional legal skill, though there seems to be considerable doubt among legal authorities now as to whether that is a tenable proposition. It is even doubtful whether the Court of Appeal's


decision on the question of costs was good law. It was based on the case of the London Scottish Benefit Society v. Chorley, which is quoted in 1884 13 Queen's Bench Division at page 872. But what that case decided was that a solicitor litigant in his own cause can get his costs spent on time and labour. It said nothing about what should happen to a lay litigant.
This merely serves to highlight the injustice done to lay litigants in person. It means that lawyers can obtain their costs in time and labour whenever they appear before the court successfully and that laymen who appear cannot get these costs.
I have been in correspondence with my noble Friend the Lord Chancellor on the matter. I must confess to the House with some trepidation that I find myself at issue with that eminent and learned authority. He is against the case which I have so eloquently put for the lay litigant to receive his costs for time and labour.

Mr. Arthur Lewis: He is defending his trade union.

Mr. Moyle: That is the point I am coming to. My noble Friend said that his decision is based on the difficulties which I have already raised, which are really administrative; they are nothing to do with the principles of justice. He has come to the conclusion that the real anomaly in the situation is the solicitor litigating on his own behalf. He intends, if the Legislature agrees with him, to pursue a policy at some future date of emphasising the distinction between costs and disbursements, and says that this will mean that payments made by litigants to third parties can be recovered at the conclusion of the case but that money owed by a litigant to himself, as it were, cannot be recovered. Litigants on their own behalf, whether lawyers or laymen, will not be able to recover costs for time and labour spent on the case, whereas those who are represented will always be able to do so, because one of their disbursements will be payment of fees and expenses to their legal representatives.
When informed of the Lord Chancellor's views on this matter, my constituent, Mr. Buckland, said:

Lord Gardiner's ruling just keeps the legal profession employed.
I cannot help feeling that this will be the reaction of the general public.
I accept that the difficulties exist, but I believe that they are soluble. In a world of accountants it should not be impossible to produce a formula which could at least do rough justice in these matters. After all, rough justice is better than no justice. Surely there is no argument for saying that just because justice cannot be perfectly done in this class of case, no attempt should be made to produce justice? Accountants who might look into this matter are used to producing formulas based on rules of thumb. Perhaps I may give an example from an entirely different field. No hon. Member would contend that council houses stand up for 60 years and then at the end of their 60th year fall down. Yet the whole basis of our local authority housing finance is based on this accountants' rule of thumb. I believe that something of this nature could be introduced to cover the problems of assessing lay litigants' time, both in terms of value and the actual amount spent on the preparation of the case and the conduct of it.
I will be the first to concede that the solution propounded by the Lord Chancellor, if ever accepted by the Legislature, is prefectly defensible in the dry logic of the law, but it will fail before the bar of public opinion. It will be regarded by the public as an attempt by the legal profession to exert some pressure on litigants, in every case, whether they wish to or not, to use legal representation to argue their case before the courts. It will be regarded—and, indeed, this point has already been put to me on television and other forums—as a case of the lawyers' trade union protecting itself. In an age when the Government and the potential Government have developed the reputation of frowning on restrictive practices and "who does what?" disputes in industry, the public will accept no excuse if they feel that they are failing to frown on the same sort of problems when they arise in quarters other than industry.
In view of the eloquent case I have quoted, I hope that my right hon. and learned Friend the Attorney-General will do his best to persuade my noble and


learned Friend the Lord Chancellor of the error of his ways, and will introduce an appropriate Amendment to the Bill in Committee in order to take care of the situation I have outlined.

5.51 p.m.

Mr. Bruce Campbell: I want to say how much I welcome the proposal to create a Family Division. It is something which many of us have advocated for many years. The extraordinary situation which has existed for so long, where family matters have been dealt with in almost every court, is an unsatisfactory system, and a satisfactory solution to the problem is now proposed in Clause 1.
Today, proceedings under Section 17 of the Married Women's Property Act—disputes between husbands and wives about property—can be heard in all three divisions of the High Court as well as in the magistrates' courts, and this demonstrates the unsatisfactory situation which has prevailed hitherto. The same sort of situation exists with regard to children and this is much more important. The custody of children is dealt with in the Divorce Division and also in the Chancery Division and sometimes in habeas corpus proceedings in the Queen's Bench Division. That is not the end of it. The custody of children is also dealt with in magistrates' courts and other litigation concerning children—adoption, for example—is dealt with in the county courts. Indeed, children are dealt with in courts which, for the most of their time, are dealing with completely different branches of litigation.
I only regret that the Bill does not go a little further and make provision for keeping family matters in special courts below the High Court level. It is an awful thing that the custody of little children should be dealt with in criminal courts, which is what magistrates' courts primarily are. Magistrates' courts spend most of their time dealing with crime and yet also deal with matrimonial disputes between husband and wife and the custody of children. I know that they do not necessarily deal with these two questions on the same afternoon, although they sometimes do, but I should like to see a situation where special courts, presided over by specially selected magistrates

deal with matrimonial disputes and with disputes as to the custody of and access to children. These magistrates should not be required to deal with other matters at all.
I have one other regret about the creation of the family division—that apparently it is not to take over the jurisdiction under the Inheritance (Family Provision) Act. That is a remarkable omission. Surely that jurisdiction is very much a family one. It is one under which, if a husband or a wife or a mother or a father dies without making proper provision for his or her dependants, the courts can order that proper provision for those dependants be made out of the estate. Surely that is very much a family matter. Since the division will be dealing with the same matter if there has been a divorce in the family, surely it must follow that, in a case where there has not been a divorce, the jurisdiction should go to the family division also.
I fear that mine may be a lone voice, but I very much regret the abolition of imprisonment for debt. Indeed, it is a misnomer to call it imprisonment for debt, for there is no such thing in this country. People are not sent to prison because they are in debt and certainly not because they cannot pay. They are sent to prison because they will not pay, because they are guilty of contempt of court. About 2,000 people a year go to prison because they will not pay.
The Government propose now that a man may deliberately incur a debt and refuse to pay; he may have the means to pay but there is going to be nothing that the creditor can do about it if he does not pay. This seems to me to be typical of the soft treatment we now give to wrong-doers of all kinds, and make no mistake about it, these people—I am talking only of those who will not pay; the people who go to prison—are wrong-doers. They are people who, having incurred a debt and although in a position to pay it, deliberately refuse to pay it. I call that plain dishonesty; I call that man a wrong-doer in every sense of the word. He is doing much more wrong than a man who commits a parking offence, is fined and who still, under these proposals, may be sent to prison if he does not pay it.
Why should there be one law for the State and another for the individual; why should the State be able to send a man to prison if he does not pay his taxes or his fines, whereas the private creditor does not have this assistance from the law?
The suggestion is that the creditor will have this new remedy of applying for an attachment of earnings order. I predict that this will prove to be a thoroughly inadequate remedy. People who wilfully refuse to pay their debts, although they easily could, are not people to be caught by an attachment of earnings order; they are self-employed people and there is no employer to deduct the money from their wages, or they are people who move from one employer to another with such frequency that no order can ever catch up with them.
Hon. Members on both sides of the House have welcomed this provision and one of my hon. Friends said that he thought imprisonment for non-payment of debt should have been abolished many years ago. I disagree. I think that this is a necessary sanction which should have been preserved.
Clause 3 provides that rules of court may be made enabling the Commercial Court to sit in private and to waive certain rules of evidence. Those of us who spend a good deal of time in court have seen examples of the danger of relaxing the rules of evidence. We have sometimes been present when, for example, hearsay evidence has been admitted, and when we have later heard the direct evidence we have found how thoroughly unreliable hearsay evidence can be. These rules of evidence were made in days gone by because they were thought to be necessary. I think that they are still necessary.
As for the provision that it should be left to rules of court to alter the law in this important respect, I echo the words of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson). I was one of the two barristers who sat on the Matrimonial Causes Rules Committee two years ago, when it was found that the members of the Committee had no power, that our voice counted for nothing, and the Lord Chancellor decided what rules should or should not be made. We could, of course, make suggestions, but he claimed to have a veto on those

suggestions. It is proposed that Parliament should empower a Minister to give to the courts the power to sit in secret and to waive the rules of evidence. If important alterations like this are to be made to the law, they should be made by Parliament and not by a Minister.

6.5 p.m.

Mr. Raphael Tuck: I rise to welcome this necessary Bill, but there are one or two matters to which I would draw the attention of my right hon. and learned Friend the Attorney-General. I particularly welcome the setting up of family courts, and on this subject the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) has taken many of the words out of my mouth. Family matters have been dealt with by many different courts, and a system of family courts has long been advocated by experts on the subject, among them the learned editor of Rayden on Divorce, Mr. Joseph Jackson, Q.C., who is a great authority, if not the great authority, on divorce in this country. My quarrel with my right hon. and learned Friend is that this is all being done piecemeal.
Appellate business is referred to in Schedule 1 in paragraphs (a), (b), and (c), and paragraph (c) states:
(c) section 11 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 (appeal from certain decisions of a magistrates' court under that Act).
The magistrates' court will still have jurisdiction to decide matters between husband and wife and under the Guardianship of Infants Act. As I have said, the subject is being attacked piecemeal.
The Beeching Report, which recommended a two-tier system, should be implemented. The courts will be reorganised in any case, and on the two-tier system the circuit courts and the High Court will interchange. All family matters should therefore be entrusted to the family courts. Under the Beeching recommendation the circuit courts will have jurisdiction over these matters. There will be three parts—matters which normally go to Queen's Bench, matters which normally go to Chancery and matters which normally go to Matrimonial Affairs. It is those circuit courts which should deal with matrimonial matters, and appeals should lie to the Appeal Division of the Family Court of the High Court of Justice.
May I remind my right hon. and learned Friend the Attorney-General that the magistrates' courts will still be administering the old law. The Divorce Reform Act, 1969, which provides new grounds for divorce, will not be administered by the magistrates' courts. They will still be administering the old law of matrimonial offences—persistent cruelty, adultery and desertion. This means that there will be no tie-up with the new law when it comes into effect next year as it is administered by the High Court. Will my right hon. and learned Friend consider implementing the Beeching Report and having the whole matter dealt with in one go instead of doing it in this piecemeal fashion?
I turn next to the provision which enables the Commercial Court to sit in private and to admit evidence which would not otherwise be admissible in the courts. We know that courts are allowed to sit in private in certain exceptional cases, but I cannot think of anything which can be transacted in a commercial court which calls for this exceptional privacy.
The right hon. and learned Member for Epsom (Sir P. Rawlinson) referred to the letter published in The Times yesterday and written by Mr. Desmond Ackner, Q.C., the Chairman of the General Council of the Bar of England and Wales, and the President of the Law Society, which contains this passage:
No doubt very many people would prefer to have their disputes adjudged behind closed doors, but in this country we have hitherto believed that it is essential to the maintenance of unimpeachable standards of justice, and therefore in the interests of the public and of litigants themselves, that cases should be decided in public".
There is also the well-known precept that justice must not only be done but must be seen to be done. In many divorce cases the parties hate to have their linen washed in public but have to do so because justice must be seen to be done and must be public. There is no justification for making any inroad into this well-tried and established rule—that justice must be public. This should apply to the Commercial Court as well.
The same goes for evidence which is received in these courts. The well-known rules of evidence must apply. There is no justification for any alteration there.
I welcome the Attorney-General's announcement that he is considering an Amendment to the Bill regarding the harassment of debtors. I did not know about the red terrors or blue terrors, or whatever he called them, but am glad to be informed of them. I knew full well that debtors were considerably harassed by creditors.
I would ask my right hon. and learned Friend also to give consideration to paragraphs 912–932 of the Report of the Payne Committee, which suggest that distress for rent due should be abolished.
Subject to these points, I welcome the Bill.

6.12 p.m.

Mr. Emlyn Hooson: It is perhaps of great significance that every hon. Member who has spoken so far, including myself, is a member of one or other of the two branches of the legal profession. I say this because it is a pity that we do not hear a lay view on a Bill that will have a tremendous impact on people's everyday lives.

Dame Irene Ward: The House will hear a lay view if I succeed in catching the eye of the Chair.

Mr. Hooson: I am grateful to the hon. Lady for interrupting me, but I never regard her views as exactly lay. I always regard them as unique.
For example, there has been a good deal of discussion about the saving of judges' time, which is rightly regarded as very important. I wonder whether it would assume such great importance in the eyes of the layman. Litigation is concerned also with the time of witnesses—doctors, engineers, and so on. A sense of balance must be preserved.
I am thinking particularly of Clause 6, which anticipates to some extent the implementation of the recommendations of the Beeching Commission. In the main, I agree with some of those recommendations. Nevertheless, in its investigations the Beeching Commission found that there was a great difference between some parts of the country and others.
Not long ago a High Court judge who has now retired told me of a case that had been transferred into his list at Derby as a matter of convenience. Convenience for whom? It was for the convenience of


the lawyers who were conducting the case. The judge discovered that one of the parties to the action—a farm worker—and his wife had had to get up at quarter past five in the morning in order to reach the court at 10.30. Particularly in areas such as mine where public communications are very bad, matters such as these are important, and I hope that they will be borne in mind when a decision is taken upon the use of the power embodied in Clause 6.
Generally I am in favour of the provisions of the Bill, which are largely a tidying operation which will entail the rearrangement of court business in a more logical and practical way. I am greatly in favour of setting up the family type of court. However, I agree with the regret expressed by the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) that we are starting at the top rather than at the bottom. There is much to be said for setting up family courts at the lower level first. Magistrates' courts, and even courts of quarter session, are so concerned nowadays with matters that have largely a social content that the right place to start forming a family court is at that level rather than at the level of the High Court.
For example, many appeals which will be directed to the Family Court should properly go to a court of quarter session. The High Court is such a high level and is so expensive in comparison with the other courts that a Government intent upon doing their best for the lay community should start at a much lower level with the family courts, but this is not in any way to say that I regret the introduction of the Family Division of the High Court.
The attribution of non-contentious probate work to the Family Division and of contentious probate work to the Chancery Division raises an important question. I suspect that there has been a good deal of in-fighting between the Divisions, with the Chancery Division claiming its share of the probate work and the Family Division claiming its share. When and how will the line be drawn between contentious and non-contentious probate work?
On circuit there is a certain amount of probate work. That work is often concerned with family disputes. As often as

not these cases are settled, especially when they are in the hands of people who are not specialists in probate work, on a family settlement basis.
There is much to be said for leaving contentious probate work, certainly of small estates, in the hands of the family court. I would be inclined to put the whole of probate work in the Family Division rather than divide it as proposed in the Bill.
I welcome, as others have welcomed, the start made in the Bill in the abolition of imprisonment for commercial debts and in the constitution of attachment orders. I thoroughly disagree here with the hon. and learned Member for Oldham, West, who made a passionately reactionary speech in favour of imprisonment for debt, in which he was supported from the most radical quarter of the House—

Dame Irene Ward: He was supported by me also.

Mr. Hooson: —and by the most reactionary quarter of the House. The point made by the hon. and learned Gentleman disregarded the findings of the Payne Committee about the nature of those sent to prison for debt—their inadequacy, and so on. In Scotland, where there never has been imprisonment for debt, the number of debtors is no greater as a percentage of population than it is in England and Wales.
This has been found to be an inadequate sanction, and, with the enormous pressure on prison space for much more important matters than this, it is high time that imprisonment for debt was abolished. There is no reason for retaining the sanction of imprisonment for debt of Crown debts. If it is abolished at all, it should be abolished across the board.

Mr. Bruce Campbell: Surely the test is the number of cases in which a debt is paid after a suspended committal order is made. A judge frequently says, "You will go to prison for six weeks unless you pay within seven days". The test must be the number of cheques that come in within the seven days, and, clearly, very many do.

Mr. Hooson: I do not agree. This is a matter of judgment, and the hon. and learned Gentleman's and mine differ in


this respect. Obviously, if imprisonment for debt is abolished, it must be replaced with something else. The introduction of the attachment order and the extension from the ordinary maintenance order is excellent.
However, I cannot understand why the Government have not implemented the Payne Report recommendation for an enforcement office and an enforcement office procedure. That is an essential part of the changes, and I would like to know the real reasons why the Government have not implemented this recommendation. We have had no explanation so far, and it is important to know what it is.
I turn now to the Commercial Court, which has aroused great controversy in the legal profession. I disagree with the majority view expressed in this House today. The reason why we have a Commercial Court is to meet a public need. Certain parties wish to litigate about a commercial matter and, normally, people in commerce want a quicker decision than our legal procedures often allow for, which is why so many revert to arbitration. They want a decision given by a man or men of standing and integrity, and they want the decision to be such that it is generally acceptable in the commercial world, which knows no national boundaries.
Most people in the Common Law Bar do not sufficiently appreciate the international nature of the Commercial Court. Only today I was told by a distinguished "silk" at the Commercial Bar of two arbitarations in which he has appeared recently. In one, the presiding arbitrator was a distinguished member of the Swiss high court. In the other, a distinguished member of the Dutch high court presided. Both judges had been encouraged by their Governments to accept the arbitrations. The one where the Dutch judge presided involved a dispute between two countries. It is highly desirable that British judges, who could acquit themselves so well in this position, should be allowed to do so. I know of one retired judge who is sought after constantly to act as an arbitrator. It is right that the Government should release judges to be arbitrators. It would add to the lustre of the English judicial system for some

of our judges to become arbitrators in the great international disputes.
I am also in favour of the provision that, on occasion, commercial judges can sit in secret and dispense with the strict adherence to the rules of evidence. This is necessary because of the nature of the litigation in the Commercial Court, and it is significant that there has been strong pressure for such a provision from those who use our Commercial Court. We have to keep up to date. The opinions of those who may be parties and those who practise in the Commercial Court are of greater value than the views of those of us who do not and who tend to generalise about such matters when we have very little knowledge of them.

Mr. Raphael Tuck: Is there anything more sacrosanct about a commercial matter which gives it the right of privacy than about a matrimonial matter or a matter of contract or tort? If people want to go to arbitraion, let them go.

Mr. Hooson: There is a great demand in commercial circles for this kind of provision. Of course, people can go to arbitration. However, unless we bring our Commercial Court LID to date, we shall find it continually by-passed, with parties going to arbitration or taking their disputes to other courts in Europe. There is considerable competition for commercial litigation. This country got an early lead in it, and it is important that the practices of our Commercial Court should be brought into line with those of other countries; otherwise we shall lose a great deal of this litigation.
At the beginning of my speech, I adverted to the absence so far of a lay contribution. It is a pity that the Government do not provide more time for general debates on such matters as the Beeching Report and some of the reports of the Law Commission. We should have these general debates before we come to debate Bills which, in part, are based on those reports. It is in that kind of debate that we are likely to obtain the views of the whole House and not just chose of a specialised section of it. The Government have been remiss in pressing on too quickly with this legislation without having the debate on the general principles which should precede it.

6.26 p.m.

Mr. A. H. Macdonald: I. am grateful to the hon. and learned Member for Montgomery (Mr. Hooson), because I felt a little apprehensive about intervening in a debate concerned with technical legal matters, and I was glad to hear him say that there should be contributions from laymen. I am conscious of my defects, and, therefore, I propose to make only a few brief remarks on one part of the Bill. That is Part III, dealing with disclosure.
I do not feel entirely at ease with the provisions in Part III. As I understand them, the Clauses provide for the disclosure in some cases possibly of medical evidence. That is a private matter, and I am sure that all hon. Members would at any rate begin with the conviction that matters which are private should not be disclosed publicly unless it is absolutely necessary.
In the evidence given to the Winn Committee there was a statement by the representative of the Transport and General Workers Union on this point. He said that people bringing legal actions for damages should have nothing to hide. I agree with that proposition, but I quarrel with the inference which seems to be drawn that because there is nothing shameful and nothing to be hidden in these matters, it is proper that they should be disclosed to the public without the plaintiff's approval or consent.
To say that a matter is private is not the same as saying that it is shameful. There must be any number of medical matters which are not shameful but which people do not necessarily want blazoned forth in public courts.
All this is commonplace, but I remind the House that not long ago my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) introduced a Bill on the right of privacy. It received widespread support. Towards the conclusion of the debate my right hon. Friend the Home Secretary indicated that it was a serious matter which should be considered in depth and he proposed the appointment of a commission to examine it. This proposal also met with widespread support, and the Bill was withdrawn. If that commission is to look into privacy and consider what should be disclosed and in what circumstances,

I am a little surprised to see a Bill coming forward now making provision for the disclosure of these matters without waiting to consider what the commission will say.
I fully recognise that in the context of this Bill we are considering the case of a plaintiff bringing legal action. Therefore, in some cases it may be necessary for medical information to be disclosed. But I am not happy about the safeguards.
The Winn Committee Report, on which I take it this part of the Bill is based, in paragraph 295 states that medical records may in many cases be illegible because they are hastily scribbled notes in a hospital; in some cases they may even be inaccurate because they were perhaps made by some junior, or even by a nurse, and the original diagnosis may have been over-ridden or amended by a later consultant.
I remind the House that the Winn Committee's Report was not unanimous on this point. In the minority report, to which I direct attention, further arguments were adduced. It pointed out that if compulsory disclosure is to be made in this way the plaintiff will apparently have no opportunity to contest whether the information so disclosed is or is not relevant to the case that is being considered.
It is conceivable that in some cases the plaintiff might wish to bring some medical authority other than the doctor who initially examined him in hospital. This would not necessarily be reprehensible, but it might create a curious situation where evidence of the plaintiff's condition by one doctor was submitted and a different doctor was testifying in court.
These arguments and others will be found in paragraph 93 of the minority report, but I do not want to dwell further on those matters because, clearly, this could be better gone into in more detail in Committee.

Mr. Gordon Oakes: I am listening with great interest to my hon. Friend's argument. Would he agree that the greatest possible protection is given in the Bill, because this disclosure can only be made on application to the court in accordance with the rules of court? There is no wild disclosure. Great care would be taken by the court, surely, to prevent any improper disclosure.

Mr. Macdonald: I am grateful to my hon. Friend. I was about to turn to that point. There is provision that it shall only be in accordance with provisions to be made under the rules of court.

Mr. Hooson: Does the hon. Gentleman agree that the advantages to the man or woman who is injured are greater than to the employer? The man or woman who has been injured will normally be taken away to hospital. Therefore, the employer is left with the photographs, the equipment, the accident report, and so on. Those things are in the employer's possession or that of a third party. Therefore, these rules will help rather than injure an intending litigant.

Mr. Macdonald: But we have not yet seen these rules. Presumably they have not yet been drawn up. Therefore, I do not see how we can say that the rules will necessarily help the plaintiff. Further, the defendant, the employer, is already in possession of a great deal of information. The proposal is that further information shall compulsorily be disclosed by the plaintiff to the defendant. But the defendant is already in a strong position, and I do not see any corresponding provision that these matters shall be disclosed the other way.
The right hon. and learned Member for Epsom (Sir P. Rawlinson) made some remarks about the rules of court which encouraged me, so far as a layman can understand these technical matters. The right hon. and learned Gentleman seemed to be giving some support to the case that I am making; namely, that if there is to be this disclosure—I have ventured to advance reasons why this should not be taken for granted—the conditions under which it should take place should be set out in the Bill rather than in the rules of court. We do not know of what these rules will consist. It appears to be a compulsory disclosure by the plaintiff towards the defence with no compensating disclosure the other way. I am not happy about the proposal that private matters shall be disclosed.
For example, the medical examination of somebody who has been injured might take account of some other illness, defect or injury that that person had which has nothing to do with the circumstances of the case. I do not suggest anything

shameful; I mean something private. If a man has some disability or defect, it is a private matter. Yet such a matter would naturally appear in the medical report of the examination of that person. If it were compulsory for these matters to be disclosed, that additional irrelevant information would be available to the defence. I cannot think that that is right.
I have ventured to put forward arguments for thinking that further thought should be given to these proposals. I can see the arguments in favour of them; but, having looked at the Winn Committee's Report, which casts doubt in my mind, and having looked at the minority report, which added to my doubt, I suggest that there are dangers and difficulties in these proposals.

6.37 p.m.

Dame Irene Ward: I am sure that the House will sympathise with me because I feel rather out of my depth. I always feel somewhat out of my depth when a great many legal arguments are going on. But I have a conscience. That is why I intervene in the debate.
I am a vice-president of the Association of Municipal Corporations. I got a letter from that association today asking me to raise one or two points on the Bill. As I consider it an honour to be a vice-president of the Association of Municipal Corporations and as nobody has made any reference to its views, I felt that I should try to do my duty by it. But I say at once that I am putting forward the association's views, not necessarily mine. I do not necessarily agree with its views, partly because I have not got the basic legal knowledge to understand whether they are sensible, though I expect they are. However, I am sure that the Attorney-General will give full account to the association's views.
The letter is not very long, and I think that it is important for me to read it. I always rather enjoy expressing my own views, even though, as the hon. Gentleman said, they are not always in accord with normal practice, and it would be a pity if I were to misrepresent the views held by the association.
It says:
The Bill gives effect to a number of recommendations of the Committee on the Enforcement of Judgment Debts—the 'Payne Committee '—; the particular recommendations implemented in this Bill are—with one exception—not of direct concern to local authorities,


but this first instalment, and the indication that further legislation will follow to implement the rest of that report, leads the Association to ask for an assurance that local authorities will be consulted before any change is made in matters where these authorities have direct responsibilities. For example, the Association is strongly opposed to the Payne Committee's recommended transfer of the jurisdiction of the magistrates' courts to the county courts in general rate recovery proceedings, and to the abolition of imprisonment for nonpayment of the general rate.
I hope that the Attorney-General will give that assurance, because, in a variety of subjects which I try to follow as carefully as I can, I sometimes find that the necessary consultations do not take place. I am sure that it will be helpful to the association if it can be given the assurance for which it has asked. I do not know whether I ought to take it from the association's expression of views that on general matters affecting questions of imprisonment, and so on, it has been consulted.
I agreed with what was said by my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell). Perhaps my only reason, apart from conscience, for intervening in the debate is that I happen to be a magistrate. I do not mean this to be disrespectful in any way, but I think that the courts of summary jurisdiction provide purely rough and ready justice. I sometimes think that it is not appropriate for magistrates on the bench to cross-examine witnesses, though sometimes I can hardly restrain myself from doing so, but I support what my hon. and learned Friend said about imprisonment.
My hon. Friend the Member for Chippenham (Mr. Awdry) thinks that he has a broad progressive view. I sat with him in the Committee considering the Divorce Bill, and I thought he felt that he had a progressive view. I am glad that imprisonment for the non-payment of maintenance orders is to be retained, because I am sure that this will be supported by women magistrates. I have spoken to a large number of them, and I know that they feel very strongly on the matter. I expect that they have expressed their views to the Attorney-General, and I am delighted that he has taken note of what they have said. I have an idea that the Magistrates' Association takes the same view, although there was some com-

plication about it, and I am glad that this part of the Bill has been retained.
The other matter which presents tremendous difficulties is the non-payment of debts by motorists. I understand that because of the new arrangements motorists who are charged with rather minor infringements of the law can write and explain the position to the magistrate—

Mr. Oakes: The hon. Lady is dealing with fines. The non-payment of fines is not pertinent to the Bill at all.

Dame Irene Ward: I am dealing with the non-payment of fines in motoring cases. Motoring fines do not now have the significance that they used to have because motorists do not always have to attend court when they are charged with an offence.
I ask the Attorney-General to institute an inquiry into the situation with regard to magistrates' clerks. I support the view that they are facing great difficulties because of a tremendous shortage of staff. I do not know whether they received a sympathetic answer to the observations made about the provision of staff to carry out the administration of the courts of summary jurisdiction.
When I sit as a magistrate, and I have to make an order in a case which is proved against someone, I always give whacking fines, and a long time to pay, because that impresses on the offender—or at least I hope it does—that he—or she—has to go on paying for quite a long time, and I hope that it encourages him to behave better in the future. But I know that that kind of decision is not particularly acceptable to those who administer the courts, because for a very much longer time they have to try to ensure that weekly, fortnightly, or whatever it may be, the fine is paid into court. I hope that in the administration of justice, which is the purpose of the Bill, a little more sympathy will be extended to magistrates' clerks because of the difficulties with which they are confronted when there are not sufficient staff to cope with the demands made on them.
I sit on the Newcastle-on-Tyne bench, though naturally not in my own constituency, and I can therefore speak freely. Newcastle-upon-Tyne has a pretty bad record, and I therefore think that it would be a good idea to examine the


position of the staff of the courts of summary jurisdiction. I should like the Attorney-General to make a real examination of the question of motoring fines, because a lot of money could be spent on some of the things in which many of us are interested. Perhaps the Attorney-General will let me know his ideas about collection.
I must get back to the Association of Municipal Corporations. Mr. Swaffield goes on to say:
There is one matter in this Bill with which the Association is directly concerned. Clause 32 implements the Payne Committee's recommendation that the courts should be given power to postpone the operation of any order for possession obtained by a mortgagee where the borrower has failed to comply with the conditions of the mortgage.
This is where my legal knowledge is very weak.
The recommendation on which this Clause is based would, however, have exempted local authority lenders on the grounds that they are not liable to the restrictions imposed by the Rent Acts on landlords. The Association infers that the Payne Committee drew an analogy between local authorities as landlords and as lenders of money to assist house purchase and, in common with the Payne Committee, considers that local authorities should have been exempted from this Clause. The Lord Chancellor"—
I am not sure that I am a great friend of the Lord Chancellor, because he never seems to do what I want him to do, and that does not commend him to me—
in the course of a debate on an amendment moved in the other House … and in correspondence with the Association, sought to equate local authorities with other lenders because `they are under no obligation to lend money and when lending are in a similar position to building societies or any other mortgagee.' The Association, on the other hand, submits that local authorities are expected to provide loans for house purchase for those unable to obtain help from building societies or elsewhere this is part of the entire housing responsibility of local authorities who have virtually become lenders of last resort and are fulfilling a social need in advancing money for house purchase; local authorities are dealing with public money; and no case has been made out for including local authority lenders in this Clause and diminishing the discretion of the local authority while increasing that of the court. It therefore hopes that an admendment excluding local authorities from this Clause will be made.
Mr. Swaffield goes on:
This is, I feel, a Committee point in substance, and if it is one with which you can sympathise"—

I do not know whether I can—
and if you will be good enough to let me know I will write to you again with a view to proposing an appropriate amendment at that stage.
I hope that I shall not be on the Committee, because my legal knowledge is not sufficient to make it worth while. I therefore thought that I had better raise this matter today, in the hope that somebody will take it up for and on behalf of the Association of Municipal Corporations, because to that association it is an important matter, and as a vice-president I should state its case.

The Attorney-General: It would be most helpful if the hon. Lady would supply me with a copy of this correspondence.

Dame Irene Ward: I am grateful to the right hon. and learned Gentleman. It will all appear in HANSARD, but I shall be delighted to hand the right hon. and learned Gentleman any correspondence. As his helpful remark will appear in HANSARD, I am sure that the association will get in touch with him, and then I shall take the view that for once I have done something to justify my re-election over the years as vice-president of the association.
That is all I want to say. This is a very important Bill. It has many appropriate Clauses. I hope that the good Clauses will go through without amendment and that the bad Clauses will be appropriately amended.

6.53 p.m.

Sir John Foster: I want to make a few points in connection with two or three Clauses.
It seems to me that in connection with Part III the fears of the hon. Member for Chislehurst (Mr. Macdonald) can be allayed. Clause 27 applies to a person who might be a party to proceedings and the court thinks he might have in his possession certain documents concerning the proceedings. That Clause will work mostly in favour of the plaintiff. A plaintiff who has been injured in an industrial accident or on the road may not know what happened —especially if he has been seriously injured—and he may therefore be behindhand, in which case, in order to enable him to decide whether or not he should start an action or whether it will


be a waste of legal aid, he can usefully cause an application to be made to discover what the facts are. In many cases the other side will produce the required documents rather than fight a useless application.
The hon. Member for Chislehurst was misinformed in thinking that private matters might be revealed. Only relevant matters will be revealed. The rules of court do not have to say that. The things that will be revealed are such things as the facts of a person's medical examination, and any account of the accident. I imagine that material that normally has absolute privilege from disclosure—things like documents prepared with a view to litigation—will not have to be disclosed. If there were to be a breach of that rule some debate would be required in this House. I am assuming that things which are privileged —communications with solicitors, or reports prepared by solicitors with regard to an accident—will not be revealed. What is wanted is a report of what happened at the time of the accident. The apprehensions of the hon. Member about Clause 27 are, therefore, groundless.
As for the hon. Member's fears about Clause 28, the Clause provides that where proceedings have been started and it is thought that some third person has documents which may help, the court shall have powers to serve upon that person a subpoena duces tecum. Before the case starts it may not be known whether such a third party has any relevant documents, and if he is unwilling to co-operate he can refuse to disclose them beforehand. He is not a party to the proceedings, so the rule about discovery does not work against him. It is therefore necessary to wait until the proceedings come on for hearing, at which point the third party can be served with a subpoena duces tecum to bring the documents into court so that the applicant can examine them there. I am talking about a third party who will not co-operate. I imagine that Clause 28 is designed to take care of that circumstance. If a court is satisfied that a third party has such a document and that it is relevant—and that it is not absolutely privileged, which in the circumstances I am sure it would not be—it can order him to produce it to the applicant.
The other Clause to which I wish to refer is Clause 3, which provides that in the proposed Commercial Court there will be a power to admit any evidence which would not otherwise be admissible under the rules of evidence. That power is contained in subsection (3)(a). In my submission, the rules of evidence ought not to exist in any case. It seems curious that the Commercial Court, which deals with important matters, can disregard rules of evidence. As the hon. and learned Member for Montgomery (Mr. Hooson) rightly said, this was done because we have a lot of international commercial litigation and other countries do not have rules of evidence. People would therefore be disinclined to come to English courts where rules of evidence are normally in existence. In my view, rules of evidence are medixyal rules, introduced to protect medieval juries—who were witnesses as well—from being misled. The rules of evidence are technically irrelevant and often exclude the truth. There are no rules of evidence in foreign legislation; the judge decides what is relevant and what is not. The tribunal is quite able to protect itself against being misled.
English civil courts are not concerned with the truth; they are concerned only with the result of the battle between two protagonists, supported by their tournament helpers; namely, the witnesses. If a person who knows the truth about a case is in court but is not called by either side, the judge cannot call him. I have known cases in which the judge has said, "If I had had the advantage of hearing X I might well have decided black, but I have not heard his evidence, and so I decided white", whereas in another case, a judge may be able to say, "I have had the advantage of hearing X and I decide"—on the same point—"white". That does not shock most English lawyers, but it shocks me. A foreign court calls all the witnesses. The lawyer who takes a proof from the witnesses is disbarred, and the witnesses are witnesses of truth, and help to discover what the whole truth is. In an English court the truth is irrelevant; what counts is what is established in the evidence between the parties, which may or may not be the truth. That, I imagine, is why the Government have decided that in commercial cases, where such a state of things is shameful for


foreign litigants, they will disregard the rules of evidence.

Mr. Raphael Tuck: If the hon. and learned Member wants to waive those long-established rules in the interests of justice, why limit it to the commercial courts? Why should not justice be done in all courts, and these rules be waived in every court?

Sir J. Foster: I am sorry if I did not make the point of my speech clear. That is the point. I welcome this slight concession to the pure principle, but I wish that it had been applied to all litigation. I do not expect that my erstwhile confreres will agree with me, but I am glad that we have this small step forward. Another such step forward is that in certain directions a person can be made to incriminate himself. I think that English law will gradually adopt these things. I welcome the fact that the judge in these commercial cases will be able to waive the rules of evidence, but I wish that this had been extended to all litigation.

7.1 p.m.

Sir Eric Errington: The Bill introduces a large number of subjects but it is unsatisfactory to have under the general heading of "Administration of Justice" such a large number of varying and important provisions. One wonders whether full justice has been done to the eminent gentlemen who have provided the varied reports on which the provisions of the Bill have been based. There have been a large number of these titled Bills over the years and this does not simplify the examination of the law. Important though the Bill is, greater consideration could have been given to many of these important provisions.
It is not entirely a legal point, for example, to consider the changes proposed under the Beeching Plan for assizes. These are matters of grave importance to private individuals with no particular knowledge of the law and very little interest, until they are compelled to have it in its procedures. Perhaps a different title could have been given to some of these matters rather than one global title for them all. No doubt the details can be studied in Committee, but

that is not adequate to the wider issue of these matters.
I am not certain how this matter of Part II stands financially. Once we decide that there should be no imprisonment for contractual debt, we must find an alternative. The Lord Chancellor, I think, said in another place that nine more registrars would be required, and the final financial statement says that there seems to be very little difference. I do not understand in what way staff will be saved. Perhaps this is another indication of the slap-happy attitude behind the Bill.
I hope that it is realised that employers, particularly small employers, will be landed in considerable difficulty, as will the staff of county courts. I doubt whether it will be financially possible to deal with these matters without private considerable cost. The cost to the country may be small: it is derisory to pay the employer "a bob a nob" to deal with these matters. The small employer faces many difficulties, and this will be just one more.
I am not sure that the system based on the Payne Report under Part II is right. Clause 17(1) says:
Where, in any proceedings, the court has power to make an attachment of earnings order, it may—
(a) order the debtor to give to the court, within a specified period, a statement signed by him of
(i) the name and address of any person by whom earnings are paid to him".
That sounds all right, but it does not happen like that with judgment debts in the county court. Many of these people do not turn up and cannot be found. We are concerned with cases which, but for the Bill, might involve imprisonment.
But, at the very portal of this scheme, if the debtor does not want to do anything about it, I do not see how he can be compelled. The only thing then is a reference to Clause 21(3), which says that a person committing an offence against the Clause will be liable on summary conviction to a fine of not more than £25. Is it thought that a fellow owing a substantial debt will be compelled by the threat of such a fine to tell the county court who his employer is? Alternatively, he may be ordered by a judge of the High Court or of a county court to pay a fine of not more than £25 or to be imprisoned for not more than a


fortnight. I should like to ask the Attorney-General how many debtors have in the past been fined for failure to attend the court or sent to prison for more than 14 days for that offence. I have not been able to get the figures but I think it would be interesting to know.
It is perfectly true that we are doing away with imprisonment for contractual debt but we are substituting another sanction for it in Clause 21(3) as I see it. If that is so, we are really back to the idea of sentencing a person for contempt of court, and that has really been a similar basis on which matters have been dealt with prior to the Bill.
I think there is a fundamental weakness in the Bill because I do not think that the sort of person who is prepared to resist all the blandshiments to pay his debt will, in any sense, be worried or concerned about the fact that he has 14 days to serve because he did not do this or that. I think that part of the Bill is weak, and I hope that some consideration will be given to whether it can be strengthened. It seems to me that the only sanction available against a debtor who does not turn up as instructed and give the name and address of his employer and other requirements of Clause 17(1) is imprisonment.

7.12 p.m.

The Attorney-General: With the leave of the House, I should like to deal with some of the matters of substance which have been raised. I know that the House will forgive me if I do not deal with all the points raised. Several of them—such as, with respect, some of the matters raised by the hon. Member for Aldershot (Sir E. Errington)—are perhaps appropriate for consideration at the Committee stage at which I hope we shall have the pleasure of the hon. Gentleman's assistance.
The first part of the Bill, dealing with the reconstitution of the High Court, seems to have been well received on the whole by the House and there seems to have been general acceptance of the idea of a Family Court. The suggestion was made that perhaps the magistrates' courts, which will continue to have jurisdiction in domestic matters, were too tainted by their criminal jurisdiction to do so. But the House will know that the magis-

trates' domestic courts are specially constituted and follow a special and different procedure from that followed when the magistrates' courts are sitting in criminal matters. There are, in particular, restrictions on the persons who may be present when domestic business is discussed in the magistrates' courts.
I was asked by the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) why cases under the Inheritance (Family Provision) Act were not to be dealt with in the Family Court. This was considered but it was regarded as a borderline case, and on the whole it seemed better, as questions of property frequently arise in relation to these proceedings, to have them dealt with in the Chancery Division.
My hon. Friend the Member for Watford (Mr. Raphael Tuck), in connection with this part of the discussion, raised the question of the effect of the Divorce Reform Act on the magistrates' courts. The whole question of the magistrates' powers to make maintenance orders is under consideration by the Government in consultation with the Law Commission in the light of the Divorce Reform Act and of the Commission's recommendations on financial relief on divorce, which are contained in the Matrimonial Proceedings and Property Bill.
It was also suggested during the debate that small contentious probate cases should go to the Family Court. Perhaps it is worth mentioning that the county court has jurisdiction in contentious probate cases where the value of the estate does not exceed £1,000.
The part of the Bill which came in for most criticism was that which related to the interesting provision as to the procedures in the Commercial Court. Until the hon. and learned Member for Montgomery (Mr. Hooson) rose, there was not a single welcoming voice, except my own, for the proposal that the Commercial Court should sit in private. I was rather hoping that the hon. and learned Member for Northwich (Sir J. Foster) might have been tempted to give his support to this but I noticed that for once he maintained a silence which is perhaps the silence of discretion. I know not. At any rate, I must be thankful for the small mercy that the hon. and learned Gentleman approved the relaxation in the rules of


evidence, which he would extend elsewhere, as he suggested in his characteristically radical speech—radical as he is in all matters affecting the administration of justice.
I make this general point as to why the proposal to enable the Commercial Court to sit in private exists in the Bill and should be given to this class of litigants—those who litigate in the Commercial Court. The reason is simply that that class of litigant has long been recognised as constituting a special category of user of the legal system. Commercial litigation is in many respects very different from other kinds of proceedings. In particular, as has been said in criticism of Clause 3(3), the commercial community has the option of arbitration. That is not an argument against allowing it to litigate in private. On the contrary, it is one of the distinguishing marks which separate it from other kinds of dispute. In this special field it is not an unreasonable doctrine that the parties are entitled to the kind of hearing which they want unless overwhelming reasons to the contrary can be shown.
Surely the contention that the wishes of the parties are irrelevant goes much too far. It is, as is apparent from the relevant Clause, the Lord Chancellor's intention to submit to the Supreme Court Rule Committee the responsibility for advising on and drawing up the rules which will apply. It is his intention that those rules should confer a power upon the commercial judge to sit in private when all the parties to the litigation want it, and not simply when one party only desires it. The fact that the provisions are to be embodied in rules of court means that they will have to be approved, as I said in opening, by the representatives of the legal profession who will be present—the barristers and the solicitors.
I do not propose to resurrect the unhappy dispute as to what went on when the Matrimonial Causes Rules of 1968 were made. It was certainly a controversy which arose in very special circumstances indeed. But it is a grotesque caricature of what goes on in the Rule Committee to suggest that the Lord Chancellor simply rubber-stamps its decisions. Bearing in mind the quality of the members of the Rule Committee—

the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, the senior Chancery judge, and three puisne judges the idea that they would be railroaded to support rules which they thought would in the circumstances be contrary to the interests of justice is a grotesque fear. However, we shall look carefully at these proposals in regard to the Commercial Court when we come to the Committee stage.
There was a good deal of discussion of the provisions regarding attachment of wages. The main criticism which emerged, I think, was directed to the failure to set up the enforcement machinery recommended by the Payne Committee; that is, an enforcement office and machinery connected therewith. It is true that the Payne Committee envisaged that the enforcement office would have district offices attached to the main county court offices, that these would be under the control of the registrar, and that they would draw their staff from the local county court.
It has been suggested that, perhaps, imprisonment for debt should not be abolished and replaced by attachment of earnings before the enforcement office is set up. I think that the hon. and learned Member for Montgomery was disposed to take that view. It would be impracticable to implement all the Payne Committee's recommendations at once. The Committee itself realised that it might well be necessary to proceed in stages, and examination of the problems involved has shown that to be right. The Committee suggested that priority should be given to the abolition of imprisonment for debt and the extension of attachment of earnings, and this is precisely what the Bill does.
Nothing is likely to be lost by not having an enforcement office at this stage. The enforcement of judgment debts by attachment of earnings can be channelled by rules of court into the debtor's local county court. The registrars and their staffs already give great assistance to debtors in helping them to fill in forms and tasks of that kind. Welfare officers with local authorities and other organisations provide most valuable services, and at about half a dozen courts, mainly in the London area, there are some voluntary welfare workers assigned to the


courts by arrangement with the judges, and these, too, have been doing valuable work during the past year or so.
These devices, if that be the right term, by which help can be given to debtors are available, and I consider that it was justifiable to proceed as we have done without waiting for the setting up of the full machinery recommended by the Payne Committee.
I was asked some questions about unpaid fines, and one hon. Member said that the total came to over £4 million. That figure, I am advised, includes fines the time for payment of which has not yet expired. In other words, it is simply the total of fines imposed which have not been paid at a particular time, even though some of the instalments are not yet due.
The problem of the enforcement of fines is extremely difficult. My hon. Friend the Member for West Ham, North (Mr. Arthur Lewis), whom I see eager to leap to his feet, has been active in referring to this question. All I can say at the moment is that the problem is being studied by the Home Secretary's Advisory Council on the Penal System. In the meantime, we hope that the improvements in the attachment of earnings machinery provided by the Bill will reduce the arrears of unpaid fines.

Dame Irene Ward: For what it is worth, my experience of Home Office committees is that they go on for years and years. How soon does the right hon. and learned Gentleman expect a report from the Advisory Council to which he has referred? The £5 million cannot have been built up in just a short space of time, and I doubt that a great deal of that £5 million is represented by fines which are not quite due.

The Attorney-General: For once, the hon. Lady is being a little ungenerous. The Home Office applies itself with efficiency and vigour to these problems. I can only say that the report is expected as soon as may be. This serious problem is being actively considered.

Mr. Arthur Lewis: My right hon. and learned Friend was kind enough to refer to me. Will he suggest to the Home Office that where a person deliberately—I emphasise "deliberately"—refuses to pay a fine upon a fine, he

should at least be given the prospect of imprisonment? I assure my right hon. and learned Friend that there are many who deliberately refuse to pay fines upon fines because they know that no further action will be taken. If they knew that there was the possibility of imprisonment, many of them would pay up.

The Attorney-General: I shall see that that stern advice is most carefully considered.
The hon. Lady the Member for Tyne-mouth (Dame Irene Ward) read the fascinating communication from the Association of Municipal Corporations. It raises some important questions. But all I say now is that the Bill does not touch the question of recovery in the magisstrates' courts of unpaid rates. Rate recovery is not affected by the Bill. However, I assure the hon. Lady that there will be consultation when this question is followed up with the local authorities.
The hon. Lady asked also whether requests from magistrates' courts for extra staff are sympathetically considered. I am told that they certainly are, and that the Home Office will give the most sympathetic consideration to such requests as are put to it. However, I must add the rider that that sympathetic consideration, and action following upon it, has unfortunately to be consistent with the need for economies in public expenditure, of which the hon. Lady and her party are the most eloquent advocates.

Dame Irene Ward: I am sorry to intervene again, but I wish that the right hon. and learned Gentleman really knew and understood the difficulties which Newcastle-upon-Tyne had in getting an additional court. The building had been bought and everything prepared but it was a frightful business to have it heated and to get the court into operation. I did not have to raise the matter on the Floor of the House, but my letters on the subject will, I am sure, be of interest to the right hon. and learned Gentleman, if he cares to look them up. It is all very well to say that we want good administration of justice, but some of the difficulties put in our way are appalling. Perhaps we could squeeze the money out of the £5 million owed in fines.

The Attorney-General: These problems are very grave, and the problem of


court accommodation is at the heart of the delays in the administration of justice. One of the difficulties is that the problem has been left to local authorities. Following Beeching, it will be centralised, and dealt with at the Lord Chancellor's Department's level. I hope that resources, both financial and personal, will be made available to speed up the provision of more court accommodation.
I share the sympathy that was expressed with the difficulties in which the procedures for the attachment of wages would involve employers. We have in the Bill attempted to help employers in several respects, and because I do not wish to weary the House with the various steps that have been taken, we will indicate in detail in Committee what we have done to make the burden which falls on them as light as possible. As the right hon. and learned Member for Huntingdonshire (Sir D. Renton) said, we are conscious that this is a burden which they did not seek, which they have not enjoyed having placed on them and which it is our duty to make as light as possible.
Anxiety was expressed about the provisions in regard to discovery. I suggest that those anxieties were answered adequately by the hon. and learned Member for Northwich and, if it be necessary, I can pursue the matter in Committee.
My hon. Friend the Member for Lewisham, North (Mr. Moyle) raised difficult problems concerning the legal aid procedures. It was apparent that he had had some extremely vigorous, though rewarding, correspondence with the Lord Chancellor. I listened and noted his remarks, and I will communicate them to the Lord Chancellor.
I am grateful to the House for its indulgence in permitting me to deal with these matters, and I thank hon. Members for the welcome which the Bill has, on the whole, received.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

Orders of the Day — ADMINISTRATION OF JUSTICE [MONEY]

Queen's Recommendation having been signified—

Resolved,
That, for the purposes of any Act of the present Session to make further provision about the courts (including assizes), their business, jurisdiction and procedure, to amend the law respecting the enforcement of debt and other liabilities, and for miscellaneous purposes connected with the administration of justice, it is expedient to authorise the payment out of moneys provided by Parliament of any increase attributable to the provisions of the said Act of the present Session in the sums payable under any other enactment out of moneys so provided.—[The Solicitor-General.]

Orders of the Day — ANIMALS BILL [Lords]

Order for Second Reading read.

7.34 p.m.

The Solicitor-General (Sir Arthur Irvine): I beg to move, That the Bill be now read a Second time.
The Bill deals with a branch of the law which is of great antiquity. It concerns the civil liabilities of those who keep or own animals for any injury or damage which those animals may cause to others, and, conversely, with the remedies which may be invoked by anybody injured by an animal or whose property is damaged, and with the preventive action which people may take to protect themselves and their property against attack from animals belonging to others.
The House will appreciate that these are matters which impinge on the daily lives of many sections of the community. A law which touches so closely the lives of ordinary people should be simple and certain. Unhappily, at present that is not so. It is one of the most intricate, complex and uncertain branches of our common law, much of it going back to conditions which prevailed centuries ago, before the Industrial Revolution.
The need for modernisation and reform has long been recognised. A Committee was set up as long ago as 1951, under the chairmanship of the then Chief Justice, Lord Goddard, to consider the law of civil liability for damage done


by animals. The Committee recommended extensive reforms, but those recommendations have never been implemented; and the need for reform has become greater.
This branch of the law was, therefore, one of the first subjects that my hon. Friend the Lord Chancellor referred to the Law Commission for examination. The Bill accords in most respects with the legislation recommended by the Law Commission in the Report published in October, 1967 entitled, "Civil Liability for Animals". The Law Commission undertook extensive consultations, which are set out in Appendix B of the report.
It is probably true to say that over a large part of the sphere covered by the Bill there is a wide consensus of agreement, and I hope and expect that that is the case. On some issues, however—I will mention two—there are conflicts of opinion. These two are questions affecting the liabilities which a person should incur when his animal strays and causes injury on the highway, while the other is the question of the extent to which somebody may shoot a marauding dog in defence of his livestock. These have evidently been weighed with great care by the Law Commission, and the Government accept the solutions which the Law Commission advocates.
What, broadly, is wrong with the present law? I think it could be said that it fails to meet the requirements of the present day in three respects. First, it is often found to be uncertain. As I indicated, this is a branch of the law of such everyday importance in the lives of ordinary people that justice can be achieved only if the law is both simple and certain. People should be able to discover easily and with assurance what are their rights and obligations.
Although the broad principles of the law are mainly sound, their exact operation is often obscure and uncertain. I will give two examples of this. It is well-established law that anybody who keeps a dangerous animal, whether it is an inherently dangerous one like a tiger or one which, although of a harmless species, is known to have dangerous characteristics, like a vicious dog, is responsible for any harm that that animal may do. But it is by no means clear whether an owner is liable where an animal has been allowed to escape as a result of inter-

ference by a third party or what is the extent of the liability of an employer where injury is done to a servant whose duty it is to look after the animal and who might be said to have voluntarily assumed a certain degree of risk.
I think that the House will agree that these are two instances of matters which can easily arise in everyday life and experience. There is even greater uncertainty about the extent, if any, to which the owner of such an animal may be liable to persons who are injured while trespassing.
To take another example, it is well-established law that if one's cattle stray into one's neighbour's garden and eat his cabbages one must pay compensation irrespective of any fault on one's part. But the law is obscure, I think, on the exceptions to this liability; where, for instance, one's neighbour could have kept out one's animals by putting up a fence and has failed to do so, or where circumstances wholly outside one's control—as in the case of a fence knocked down by a car or pulled down by destructive youths, for example—have allowed the animal to escape.
Another defect of the present law is the development of fine distinctions leading to excessive complexity and sometimes quite unreasonable results. The basis of the decisions which constitute the case law under this head becomes part of the common law to be followed by the judges in subsequent cases. In some instances, the law has developed over a long time principles which are inappropriate today. There is the question of what is or what is not a dangerous species. Whether an animal belongs to a dangerous species is a matter of law which has been determined by reference to criteria which are now out of date. Once determined, the classification cannot be changed except, perhaps, if a subsequent case is taken through all the instances up to the House of Lords. So it is now the law that elephants and monkeys are wild and dangerous, but camels and bulls are tame and not dangerous.
Another example can be taken from the law relating to the right to detain animals which stray on to one's land. This is intended to enable people to protect themselves against further damage and to ensure that they will get compensation for any damage already done.


But, the exact extent to which the detainor of the animal may obtain compensation and the extent to which he himself becomes responsible for the welfare of the beast he has detained depends on whether he has impounded the animal on his own land or in a common pound. Cattle pounds are not readily accessible to most of us nowadays, and the impracticability of this remedy, together with the overriding defect that there is no power to sell the animal where the owner does not reclaim it, have rendered this branch of the law almost wholly obsolete.

Mr. Emlyn Hooson: The right hon. and learned Solicitor-General suggested that bulls and camels were not regarded as dangerous animals. Does he impliedly suggest that under this Measure a bull will be regarded as a dangerous animal?

The Solicitor-General: Under this Bill the distinctions that have been drawn under the common law, which I illustrated by reference to these two types of beast, are eliminated, and what I suggest to the House is that they were unrealistic distinctions and did not accord with contemporary and common sense opinion.
The third defect of the present law, and perhaps the most serious, concerns animals on the highway. The legal rules—

Mr. Leo Abse: Before my right hon. and learned Friend moves from the question of retaining the animal, will he explain why it is that now we are to be faced with a situation that there has to be a retention for 21 days and not for the 14 days recommended by the Law Commissioners, which imposes an intolerable burden in South Wales upon people who have not the facilities to keep sheep in their back gardens?

The Solicitor-General: I take note of my hon. Friend's point. It is interesting and, no doubt, arguable, but he will agree that it is a Committee point, and I look forward to the opportunity of pursuing it in Committee.
The third defect of the present law, as I have just indicated, concerns animals on the highway. The legal rules regard-

ing animals on the highway are based, I think the House will agree, on social conditions of a different age. Today, they have become inappropriate, and work serious injustice.
The occupier of land adjoining the highway is under no obligation to prevent his animals from straying on to the highway and, therefore, owes no liability for damage or injury caused by his straying animals. The rule dates back to the times when highways came into being across open land, the soil of the highway and the adjoining land often being in the same ownership. So if, today, sheep straying on the highway unseat a bicyclist, or a dog causes a car to swerve into a wall, or a stray horse is responsible for a traffic accident injuring a coach load of passengers, for example, there is no legal remedy. The principle has been applied time and time again with the utmost reluctance by judges who have felt themselves constrained to do so.
In this connection I draw attention to a comment of Lord Justice Pearson, as he then was, in the case of Ellis v. Johnstone—a 1963 case:
In this sphere the common law has not shown its usual elasticity and adaptability. It has become so rigid that it has failed to make any response at all to the changing conditions on the roads and their traffic".
Those words indicate what I feel sure the House will be satisfied of, which is that there is a need in this field for a new and clearer statement in statutory form of the law in this matter, which is at present such a complex and elaborate department of the common law.
The Bill seeks to put these matters right. The first six Clauses introduce a new code of strict liability for animals —and by "strict liability" I mean liability irrespective of fault. Apart from the code of strict liability, liability will continue to depend on the fault of the keeper of the animal under the general rules of the common law as amended by the Bill. A person who keeps or controls an animal is always responsible if it does damage because he has failed to take reasonable care to prevent it from doing so. That liability is based on the law of negligence or the liability of occupiers for the safety of their premises, with which these six Clauses are not concerned. This part of the Bill sets out


in statutory form all the circumstances in which a person will in future be liable, irrespective of any fault of his, for damage done by his animals. It replaces the common law, and sets out with precision who is to be liable and to whom, what kind of damage it is for which liability is incurred, and what defences may be used to rebut a claim.
The new code re-enacts the broad principles of the existing common law, but irons out anomalies and complexities. It introduces certainty where the law was ambiguous or ill-defined. Fairly broadly, applying the new code has the result that anyone who keeps an animal of a dangerous species or one which although of a harmless species he knows to have dangerous propensities, will be liable for any damage or injury done by it, unless the injured person was himself wholly at fault or voluntarily accepted the risk of injury, and subject to certain qualifications where the injured person was a trespasser. A person who keeps a dog will be liable, irrespective of any fault of his, if the dog kills or injures someone else's cattle or poultry. Again, there are certain well-defined exceptions. Anyone whose livestock strays on to another's land will be liable, again whether he has been at fault or not, for any damage done to crops or plants growing on the land or to any property belonging to its occupier, but this liability is excluded where the occupier was himself solely responsible for what has happened or where the animals strayed on to his land from the highway.
There follows Clause 7, which makes provision for a new statutory right to detain and sell trespassing livestock. This is to replace the common law remedy of a similar nature known as "distress damage feasant". The precise limits of the right are set out, and much archaic law on the seizure of animals—their impounding and redemption—is swept aside. The most important feature of the new right is that unless the detained animals have been reclaimed and satisfactory amends for damage done by them and the cost of detaining them has been tendered by their owner within 21 days, the person detaining them may proceed to have them sold either at a market or by public auction. The interests of the owner of the animal are safeguarded by a requirement that he must be noti-

fied, if his name is known, and so must the local police, within 48 hours of the detention, and a further requirement that the animal must be returned to its owner on receipt of the appropriate amount of compensation.
The most far-reaching change of the existing law made by the Bill is in Clause 8, which deals with the escape of animals on to the highway. The complete immunity from liability for acts done on the roads to which I referred a few moments ago will disappear. In future the normal rule whereby a person is liable for negligence if he does not exercise reasonable care in relation to any animals or things in his control to ensure that they do not cause injury to others will apply in respect of damage caused by an animal which has escaped on to the highway as it applies to damage done by animals or chattels anywhere else. In determining whether there has been a failure to take reasonable care the court will, of course, take account of all the circumstances. It does not follow that in future the owner of the animal responsible will always be liable where injury or damage is occasioned on the highway. That will depend on the adequacy of the steps which he took to prevent the accident.
On a busy main road with a constant flow of traffic it might well be negligent to allow a dog off the leash whereas it would be perfectly reasonable to do so in a quiet country lane. Similarly, it would almost always be negligent to allow cattle to roam freely by the side of busy main roads close to built-up areas. In such an area cattle and horses ought to be fenced in, but different considerations might apply where a road crosses open land and travellers must know that cattle and horses are habitually left to graze there.
The court is assisted in the evaluation of the various factors which may establish or negative negligence by guidelines laid down in the Bill. It is to have regard to the nature of the land and the situation of the highway, the extent of the use likely to be made of the highway, the obstacles which the animal has to overcome before straying on to the highway and the extent to which those travelling on the road can be expected to know of the risks and to guard against them. Finally, the court must take into account


the seriousness of the risk compared with the steps necessary to avoid or reduce it and, where the dangers could have been avoided or reduced by fencing, the extent to which fencing is normal practice in the area concerned.
This final criterion about the practice of fencing is not found in the corresponding Clause of the Bill annexed to the Law Commission's Report. It has been added because the Government are conscious of the anxiety felt by the farming community in those areas of the country where land is normally left unfenced. These farmers fear that the Bill will impose heavy financial burdens on them and that they will have to put up fences. It will be appreciated that the Government had these considerations well in mind when that amending provision found its way into the Bill.

Mr. J. E. B. Hill: When dealing with fencing, had the Government in mind the common practice of using electric fencing when cattle are grazing in fields which are not always grass but only temporarily grass? This is an important factor in arable areas.

The Solicitor-General: I am obliged to the hon. Member for that intervention. I have no doubt that these factors have been in mind, as indeed all have been. That is a point which perhaps we can pursue at a later stage.

Sir John Foster (Northwich): In future if the electricity supply failed and the cow got out, would the owner of the cow be liable?

The Solicitor-General: The hon. and learned Gentleman is establishing a reputation in my mind, he may be interested to know, of putting before me fairly elaborate and complex points and theoretical possibilities. I would rather like to reserve my answer to that inquiry. I hope that in requiring the court to have special regard to the extent to which fencing is normal practice in the area we shall be regarded as having gone a considerable way to meet this anxiety. Some additional liability will fall on farmers in open parts of the country but I do not believe that it will be serious or that it cannot be covered by insurance at minimal expense. The Bill does not impose liability for animals straying from common land or town or village greens,

because it is impracticable to put livestock out to graze on a common and to prevent them from straying; commoners have no right to put up fences.
As a result of the change in the law on animals on the highway, the owner of a dog which runs into the road and causes an accident will in future be liable for the consequences in some instances where hitherto he would not have been liable. The number of such cases may not prove to be very large since even at the present time the owner will often be liable because he has been negligent and in any event there are the difficulties of identifying the dog, of establishing that it was the cause of the accident, and of tracing the owner. But it is hoped that the Bill will have some salutary effect on the control which people exercise over their dogs and in inducing more of them to cover themselves by insurance for any damage which their dogs may do. Road accidents involving dogs kill or seriously injure on average about 500 people a year.
Statistics are not available of the total number of road accidents involving animals of all kinds but the figures concerning dogs are some indication of the scale of this danger and risk. One of the benefits I hope from this Bill is a reduction of the accident rate.
Lastly I ought to mention the rationalisation of the rules which govern the extent to which a farmer can protect his livestock against marauding dogs. The existing law which has developed from the right to defend oneself and one's property no longer meets the needs of the farming community. Sheep and poultry worrying is a serious problem in some parts of the country. The Law Commission gives some interesting figures on page 36 of its Report. These cover the years 1961 to 1966. I am informed that the number of sheep killed and injured by dogs in 1967 and 1968 were 8,537 and 7,001 respectively. There has been a welcome improvement in these figures over the last 10 years, but they still represent a real problem.
The Bill will materially strengthen the position of the farmer who is defending his stock. Where at present he can shoot a dog only while an attack is in progress or is about to be resumed after being broken off, he will in future be able to do so if he reasonably anticipates that


an attack is imminent. He will also have a good defence against an action by the owner of the dog if he shot it when it had been worrying livestock and was making its escape. On the other hand there will be safeguards for the owner of the dog. An escaping dog must not be shot if it is under anybody's control or if there are practical means of discovering to whom it belongs. After a dog has been killed or injured the police must be notified within 48 hours.
I turn to the provision in Clause 11(2) which has undertones reminiscent for many of us of earlier occasions, the provision:
In ascertaining the meaning of any provisions of this Act, regard may be made to the Report of the Law Commission on Civil Liability for Animals.
I want the House to consider that, because this is an important issue in principle and everyone will wish that we should make progress in our consideration of it. I well remember that on an earlier occasion the hon. and learned Member for Montgomery (Mr. Hooson) helpfully treated this as a matter which deserved careful inquiry and analysis. The Bill affords another example of the type of provision with which much concern has been shown.
We want to get the background right about this and bear in mind that in most situations involving a legal dispute the effect of any Statute will be clear once the facts have been determined. Even where disputes reach the courts, by far the greater part of the judge's task, at any rate at first instance, is to find out what actually happened.
Questions of interpretation of Statutes will arise only in a minority of cases. In these cases any competent lawyer will necessarily, if he is to discharge his duty to his client, have regard to the background and to any relevant extraneous aid. If the legislation derives from a report, he will look at the report. He will also take note of the views expressed by leading textbook writers and by authoritative writers in legal periodicals. He will also have to read any relevant cases. It is quite clear that before advising his client on any difficult points of construction the lawyer does not merely read a Queen's Printer's copy of the Statute.
That is the background before which this matter deserves to be considered.
In a case which does involve a question of statutory interpretation and which is litigated, the question arises: can the courts openly look at reports of Royal Commissions and committees which have wholly or in part been the basis of the legislation in question? It is quite clear that in the present state of the law the court can look at any of this material in order to inform itself of the mischief which the Statute was intended to remedy. The right of the courts to do this has been recognised by them in cases since the 16th century.
The present law would seem to draw a distinction between reference to commission or committee reports for the purpose of ascertaining the mischief which is committed and reference for the purpose of ascertaining the particular remedy which the Statute provides. I suggest to the House that on analysis this rigid distinction is found in practice to be somewhat unreal. In fact, I believe it true to say that judges now tend to look at reports as a whole.
This matter was emphasised by the noble Lord, Lord Denning, in the Second Reading debate in another place on the Matrimonial Proceedings and Property Bill. The blurred line between mischief and remedy is illustrated by the remarks of the President of the Probate, Divorce and Admiralty Division in the recent case of F. v. F., reported in 1970 1 All England Reports, pages 204–5:
The court will seek to ascertain what was the pre-existing mischief which Parliament was endeavouring to remedy: this will often give a guide to what remedy Parliament has provided, and to its extent and sanction. In the case of Section 2 of the 1958 Act…the preexisting mischief cannot be in doubt. It is spelt out in detail
and he gives the reference.
… nowadays courts do not insist on proceeding blindfold when such information is available.
The difficulty of the present distinction between using a report for the purpose of ascertaining the mischief which a Statute is designed to remedy and ascertaining the nature of the remedy is well illustrated in the case of the present Bill. Most of the relevant law relating to animals is to be found in a complex body of case law. The Law Commission report offers a most valuable summary and illustration of the existing law which it is most difficult for the practitioner to begin to achieve by


analysis of the hundreds of cases at common law which are relevant.
The practitioner and the courts are at present entitled to read the report in order to identify those parts of this body of law which are regarded as being in need of change, but, having reached that point, I suggest that it is quite artificial to pretend that the reader can draw a line which will exclude those parts of the report which indicate the remedy.
Still upon this important point, it has been suggested that the proposal is undesirable because it reduced the authority of Parliament and inflates the authority of the Law Commission. This argument I believe to be utterly misconceived. I believe it to be nonsense. The purpose of this type of Clause is not to challenge the authority of Parliament. It is wildly absurd to think that the Law Commission would ever lend itself to such a challenge. On the contrary, the purpose is to give Parliament the opportunity, if it thinks fit, of providing the courts with the means of carrying out Parliament's intention more effectively. Nor do such Clauses result in any diminution in the interpretative powers of the court. They strike off fetters by which the courts are at present bound in theory and to some extent in practice.
A further facet of the constitutional argument is that to make the report on which a Bill is based admissible in aid of its interpretation is an attempt to inhibit Parliament from rejecting the recommendations of the report or from amending the Bill as originally drafted.
This is the last thing that is intended. Parliament must have complete freedom to reject a Bill or to amend it in any way it thinks fit. Law Commissions and other committees and commissions are advisory bodies alone. It is for the Legislature to legislate in the light of that advice and to accept or reject it.
If Parliament substantially amends a Bill, reference to the Law Commission's report on which the original version of the Bill was based will obviously be less valuable than if there had been no amendments. I would have thought that was a very clear proposition.
But in the case that may be a hypothetical case where the draft Bill comprised in the Law Commission's report

is substantially acceptable to Parliament after a debate, Committee stages, and so on, we think that the reference to the Law Commission's report can be of great value. We think it better that the matter should be dealt with openly and that its usefulness should be recognised. Some critics say that the Clauses will substantially add to the work of legal advisers and, therefore, to the expense which will be borne by their clients. As I have already said, if a point of real difficulty arises a practising lawyer will necessarily have to consult leading textbooks, decided cases and other material in addition to reading the words of the enactment in question. If—heaven forbid —the members of the Law Commission were to die overnight, under existing practice their report would almost certainly be something referrable to by the courts under the category of a text book on issues of law. It is a most artificial consideration that denies reference to the report because of the happy circumstances that the members of the Law Commission survive.
The suggestion that the provision will materially add to the trouble of the practising lawyer or the expense borne by his client if he can openly refer to material which at present he will almost certainly read anyway, and which it would be rash for him to assume that the judges or his opponents have not read, must surely be nonsense.

Mr. Edwin Brooks: My right hon. and learned Friend has devoted a considerable proportion of his speech to a matter which seems to have much wider implications beyond the Bill. I speak with hesitation as a non-lawyer, but does not he agree that there is a difficulty in defining a priori the degree of difference which may exist between a Bill as it eventually emerges as an Act and the prototype Bill which may have appeared in the report of the Law Commission? If there is a very substantial difference—and this must be a subjective matter of judgment—possibly reference to the report of the Law Commission on any Act could not merely have less value than had there been no substantial amendment, but could be positively mischievous.

The Solicitor-General: I am obliged to my hon. Friend for that intervention.


I have already indicated my belief that the more departures there are in Standing Committee from the original draft of the Bill, the less valuable is reference to the Law Commission's report likely to be. I acknowledge that, but that does not lead me, bearing in mind all the relevant circumstances, to the conclusion that it is undesirable to provide in Statute that the court may have regard to the report of the Commission for the assistance of interpretation of the Act. The courts will be well aware of such departures as there have been in Acts passed by the House from the recommendations of the Law Commission. The judges will be well aware of them. They will be obvious from the whole record of the matter.
What we are doing here is to suggest that it is highly desirable to set out clearly that there is a right of the judges to refer to the report to assist them in inerpretation. That is all we are doing. There is nothing mandatory about it; it is purely permissive.
The evidence is that many judges would welcome this proposal. It was Lord Wilberforce who moved the subsection at the Report stage in another place. When the House divided on the Clause, with a majority of 18 in favour, those who voted in favour included—in addition to Lord Wilberforce—Viscount Dilhorne and Lord Morris of Borth-y-Gest. Bearing in mind the support of Lord Denning on the other Bill which I mentioned, this constitutes a very powerful body of legal opinion.
It has been suggested that the Clauses represent an attempt to introduce by the back door the recommendations set out in the joint report of the two Law Commissions on the Interpretation of Statutes in advance of a general debate on the recommendations. The answer is that that is simply not the case. In the debate on the Bill before us, my noble Friend the Lord Chancellor gave an assurance in another place that he was inviting acceptance of Lord Wilberforce's Amendment on the understanding that it was not intended in any way to prejudice the consideration which would have to be given to the report on the Interpretation of Statutes.
The law relating to animals is a complex branch of the common law. What could be more absurd than to argue that

lawyers dealing with cases under this head should not have regard to an analysis and study of the common law cases by a body like the Law Commission?
I apologise to the House for dealing at such length, in connection with this Bill, with what is confessedly a rather broad issue of principle, but it arises explicitly in Clause 11(2) and is a matter of great importance. Having regard to the background and complexity of the Common Law to which I have referred, I would suggest that the law relating to animals and liability in connection with animals is peculiarly well fitted and suitable for the kind of provision in that Clause.

Mr. Hooson: One matter that the right hon. and learned Gentleman has not dealt with is the definition Clause. I am sure that the whole House has been waiting for him to explain what exactly is meant in the definition of "livestock" by the word "hinnies". Clause 11 says:
'livestock' means any animals of the bovine species, horses, asses, mules, hinnies …
Perhaps the Solicitor-General could explain what they are.

The Solicitor-General: I cannot tell the hon. and learned Gentleman immediately what a hinny is. All I can say is that it sounds a highly domesticated creature.

Sir David Renton: The same point arose during the discussions on the Highways (Provision of Cattle-Grids) Act, 1950, when it was explained by a back-bencher on the Conservative side to another Labour Minister that a hinny is the converse of a mule.

The Solicitor-General: How far that clarifies the matter may be open to doubt. All I know is that there are no hinnies, so far as I am aware, in the Edge Hill division of Liverpool.
The Bill does not deal with legal rules known only to the specialists. It concerns ordinary people. It is an important Measure which may at one time or another affect the life or property of almost any citizen. It is my hope that it will not only make the law simpler, clearer and fairer but above all will give a remedy to a significant number of persons who suffer injury in road accidents for which there


is at present no redress. If in addition the Bill were to have the effect of reducing the number of road accidents, which it is not altogether fanciful to hope, it will perform a highly desirable service.
I believe that the Bill deserves the wholehearted support of the House.

8.20 p.m.

Sir David Renton: It is a pleasure for me for the second time in eight days to thank the right hon. and learned Gentleman the Solicitor-General for a careful and lucid explanation. But I do not think that I can quite accept his apology for the very heavy broadside, of what I can only describe as debating ping pong balls, which he launched on us in defence of Clause 11(2). I think that many hon. Members, especially laymen, will think it strange that this very important principle relating to the interpretation of Statutes should have been dealt with at such length by the right hon. and learned Gentleman on an occasion when we are discussing the reform of the law relating to animals. I shall later, I hope at rather less length, attempt to deal with this argument.
Meanwhile, and in the presence of the right hon. and learned Gentleman the Attorney-General, I say again, as I said a week ago, that it is extremely regrettable that this important new departure which the Government are trying to advance should be done piecemeal as though they were trying to do it in a kind of "build-up" manner instead of our having a proper discussion devoted to the principle itself. Such a discussion could surely take place on a debate to take note of the Law Commission's 21st Report on the Interpretation of Statutes, which is a very interesting and important document.
Apart from subsection (2) of Clause 11, and apart from the provisions of Clause 8 relating to animals straying on to the highway, I would like to give a general welcome to the Bill and would again like to acknowledge the valuable work done by the Law Commission, this time on foundations laid by Lord Goddard's Committee as long ago as 1953. The Goddard Committee proposals were regarded as in some ways controversial. There are people who think, however, that they were preferable to some of the provisions in the Bill. But further thought

and discussion has enabled the Law Commission to produce these proposals which, apart from Clause 8, are more generally acceptable than those put forward by the Goddard Committee.
The Bill is indeed a useful piece of codification of the common law and of reform of the law. Having commented unfavourably on the very long title to the Matrimonial Proceedings and Property Bill a week ago, I must say how I admire the way in which the long Title has been drawn in this Bill. It does, within the scope of the subject, although it has a fairly limited scope, give us much more freedom to move Amendments at a later stage. That is a much better model of a long Title.
In relation to the drafting of the Bill generally, I think that hon. Members will be glad that we have got rid of those Latin expressions which are so familiar to lawyers and surprisingly well understood by them on most occasions, despite what the learned Solicitor-General said. The Bill, as he rightly pointed out, affects a very large number of our people; indeed, it affects potentially every household in the country because almost every household either has had a dog or would like to have one.
I come now to the real point of controversy on the substance of the Bill, the application of Clause 8 with regard to livestock straying on to roads. Its application is difficult, especially in hill farming country. It seemed to me that the common law, in spite of its antiquity and obscurity on some points, was probably well suited to the problems of rural life until the coming of the motor car. When the motor car came, it was regarded as something much worse than a dangerous animal. Many people still regard it as the most dangerous animal of all. It causes more pain and suffering than animals have ever done in this country, despite the fact that the motor car is much easier for man to control than most animals are.
However, we have to acknowledge the fact that the day is long past in our highly motorised society when we can say that all owners of cattle, sheep, horses and dogs shall always have complete priority in all circumstances over the motor car on the highway. That day, whether we like it or not, has passed. It is on that assumption that, in my


opinion, we should consider Clause 8 and, indeed, some of the other parts of the Bill too.
As a Member for a large rural constituency, I am deeply conscious of the doubts and, indeed, the fears of the National Farmers Unions and many of their members about Clause 8, and I think that the Government must try to set these doubts and fears at rest. They can do so up to a point by careful explanation of the principal effect of the Clause, but I think some amendments are needed to clear up certain matters which are, to me at any rate, still obscure, and I know that they are obscure to others as well.
The first thing to point out to all animal owners is that no farmer will be liable for damage or injury caused by his animals straying on to the road unless negligence is proved against him. It is perfectly plain from subsection (1) of Clause 8 that the burden of proof will, at any rate at first, be upon the plaintiff. It will be upon him to prove that the farmer was negligent. It will not be upon the farmer to prove that he was not negligent.
But the question immediately arises of how will the courts interpret subsection (2). As the right hon. and learned Gentleman did riot in detail go into the five sub-paragraphs (a) to (e) inclusive, to which regard must be had in determining negligence, I think that I should refer to them in detail because I shall have comments to make about especially the last of them. But perhaps I am doing the right hon. and learned Gentleman an injustice. He made a passing reference to the first three of them and I think that he omitted reference to the last one.

The Solicitor-General: I did mention the last one.

Sir D. Renton: I am obliged to the right hon. and learned Gentleman. I was perhaps trying to take too careful a note of what he was saying. Let us consider the last sub-paragraph because it is really the important one. This very important matter of fencing, which the courts must have regard to and which has been the subject of amendment in another place, was not in the minds of the Law Commission, and on this point, which is perhaps the most difficult point in the Bill, reference to the report of the Law

Commission will not avail anybody because the Law Commission did not mention it in this context. It arose in another place. May I just read it:
(e) the seriousness of any such risk and the steps that would have been necessary to avoid or reduce it, and, where it could have been avoided or reduced by fencing, the extent (if any) to which fencing is the normal practice in the area in which the land is situate;
The words "if any" are very important, although they are in brackets.
Let us consider the meaning of the words "the normal practice in the area". There is a much older phrase which means exactly the same—"the custom of the country". The custom of the country is what our common law is based upon so, although the Bill purports to replace the common law, it does in this respect bring us back to its very foundation.
Applying those provisions and the custom of the country to those considerable and still lovely and unspoilt areas of our country where, on hill farms, sheep and cattle graze on unfenced lands, it seems to me—and I should be glad if the Solicitor-General could confirm it—that, if it is the normal practice in the area, the custom of the country, not to have any fencing, a farmer cannot be expected to provide any. I am talking now of the practical, physical difficulty that arises. It is a difficulty first in relation to cost. It would have to be pretty stiff fencing of the kind now being erected by the Ministry of Transport along the side of trunk roads, and fencing of that kind now costs about £800 a mile to erect in fairly accessible country. The cost is greatly increased if it has to be erected on rocky hills and in inaccessible places. The farmers cannot be expected to incur that sort of cost, and I shall be glad to know from the Solicitor-General if the Government accept that farmers cannot be expected to incur such costs.
Incidentally, it rather spoils the scenery, and those of us who are keen about amenities have doubts about forcing people to put up fencing which is extremely expensive and perhaps not necessary, quite apart from the fact that it is not the custom of the country to have it.

Mr. Abse: A great many hon. Members on this side of the House are concerned with the amenity of the people who live in townships in areas of this


kind, and they put people before sheep. Will the right hon. and learned Gentleman, since he is speaking from the Front Bench opposite and not on behalf of his own rural constituency, direct his mind to the point that farmers should be restrained from over-stocking and being careless about looking after their animals in areas which are immediately adjacent to industrial areas? In that respect the Clause is clearly one in which the question of fencing is comparatively irrelevant.

Sir D. Renton: I would not say that the question of fencing is irrelevant, even in the circumstances which the hon. Gentleman mentions. With great respect, when he reads HANSARD tomorrow, he will find that he was diverting me on to a slightly different point from the one I was on, but, to a limited extent, it is a point I shall come to.

Mr. William Baxter: A point of principle is involved here. The right hon. and learned Gentleman rightly points out that it would be a costly operation to fence hills and valleys where sheep and cattle have roamed for centuries, and that it would cost roughly £800 a mile. Where it is necessary to put up a fence, should not the onus of responsibility for the erection and maintenance of the fence be the responsibility of the Minister of Transport, in view of the right hon. and learned Gentleman's previous statement that it is the car which makes it necesary for the fencing to be there?

Sir D. Renton: That is another fascinating red herring. In any event, I am in the happy position of having only to try to make constructive criticism. I am not the answerable Minister—at least, not now! May I suggest that these interventions would have been better made when the Solicitor-General was speaking. I do not see why I should be diverted from a theme which I am trying to develop as patiently as I can to deal with the difficulties, which I appreciate, of other hon. Members.
I have asked the right hon. and learned Gentleman to confirm that the Government accept that it would be unreasonable for farmers in hilly areas to spend these enormous sums on fencing roads which are unfrequented to any great extent by motorists. Will he also confirm that, on

his interpretation of the Bill, such farmers will not be liable in negligence within the terms of Clause 8 if they do not do any fencing? It is important for us to know that. It would seem that that is so by the wording of subsection (2)(e).
The various matters to which the court must have regard are carefully set out, but how, if at all, do they affect the burden of proof? That is not made clear in the Bill, and it should be made clear at a later stage. Farmers fear that, although it may be for the plaintiff to make a prima facie case under Clause 8, when it comes to dealing with these other matters, the burden of proof will be upon them. That is what we shall have to make clear, unless the Solicitor-General can assure us tonight that the burden of proof never will be upon them. If he gives such an asurance, I would prefer to see it written into the Bill, whatever the Law Commission may or may not have said about it.

Mr. Gordon Oakes: Is the right hon. and learned Gentleman suggesting that the words that have been added in the other place to the draft Bill of the Law Commission should be deleted? If so, I would agree, but on a different argument. The right hon. and learned Gentleman speaks of farmers, but in my constituency and that of my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) and that of my hon. Friend the Member for Bebington (Mr. Brooks) we do not have "hinnies" but we do have dogs. It is not the normal practice of the area to fence round housing estates. Is this an escape Clause to allow every dog-owner who lives on a housing estate to let his dog run round? That is the sort of position this difficulty with farmers has led us into.

Sir D. Renton: The hon. Gentleman has mentioned another difficulty. One could spend a good deal of time answering the points which arise on that. I will answer only that point which he put specifically. He asked whether I thought that the words which had been added since the Law Commission had made its draft Clauses should be deleted. No, I do not. They should remain there. Those words were an improvement of the Bill. None of my hon. Friends is likely to disagree with that. What should be made plain is how paragraphs (a) to (e) affect the burden of proof.
In the Lords, the way in which special treatment is given to common land and village greens in the last two lines of Clause 8 led to some doubt. It has drawn attention to the contrast between the blanket exemptions when animals graze on commons and village greens and the rather difficult issues which will have to be decided by the courts on the question of negligence in the earlier part of the Clause. I am fairly happy about this, but I know that the National Farmers Union and a number of those who spoke in another place are not happy. At any rate, it might be better to set all fears at rest by redrafting the last part of the Clause.
I will deal with one point which the hon. Member for Pontypool (Mr. Abse) mentioned, although not in the way in which he would like. One realises that in open hill country farmers do not want their cattle injured by cars. Nor do they want their cattle to injure motorists. It therefore seems relevant in the context of this difficult problem to consider what steps can be taken within the framework of the existing law to make the lives of the cattle, the motorists and the dogs a bit easier in this hill country.
It is not the same sort of problem as arises in East Anglia, where I live. We have our commons, and people know where they are. The commons are mostly unfenced. They generally have roads or footpaths going through them, and we have all become accustomed to using them, and accidents are extremely rare. So the problem to which I am going to refer is essentially one in hill farming country.
Under the Highways (Provision of Cattle-Grids) Act, 1950, which has now been replaced, without substantial change, partly by the Highways Act, 1959, and partly by the Agriculture Act, 1967, arrangements and grants were proposed by Parliament to enable cattle grids to be inserted by highway authorities and local authorities on public roads and on land adjoining so as to prevent cattle from straying on to the roads. It was hoped that, in this way, considerable areas of additional grazing land would be brought into agricultural use in hill country without the risk of damage by or to animals.
In 1967 we had the Provision of Cattle Grids (Payment of Grants) Regulations. They were not the first of their kind: they replaced previous ones. If the Solicitor-General can say what is being done by way of implementing the Act and what grants are being paid, this would be relevant to our debate and very helpful. Perhaps I am asking too much at too short notice, but between now and Committee he should arm himself with pretty full information on this point.
I apologise for having spoken at considerable length on this, and longer than I had intended, but I am afraid that the interruptions made this inevitable. Certainly, Clause 8 is still controversial and difficult to interpret. Speaking as one who practises in the law, I think that it will give rise to difficulties over the burden of proof unless there is clarification.
I should like to pass on to the question of the Law Commission's reports being used for interpreting our Acts of Parliament, and this one in particular. Since a week ago, when I found myself in disagreement with the Solicitor-General, I have, like him, given the matter a great deal of thought. I take note of what he says, but I do not accept it. I think that the right way to consider what sources should be available to the courts is to draw a clear distinction between, on the one hand, Acts of Parliament and the reports of cases decided by the courts and, on the other hand, all the other available sources, lumped together and given no special status.
I would put a good modern textbook like Archold's Criminal Law—which is the criminal lawyer's bible—Halsbury's Laws of England and Halsbury's Statutes in just the same position as the Law Commission reports. I would put them all on the other side of the line from the Acts of Parliament and the decided cases. In some ways, the Notes to Halsbury's Statutes will be more valuable than the Law Commission reports, because those are comments made on our Statutes when the final versions of them are available after the Royal Assent. With the Law Commission reports, nearly always we shall find that changes have been made by the process of going through Parliament. To the extent that changes are made, they will lead to doubt and difficulty in discussion if we


give them a special status for the courts to consider, even though it is only permissive.
I have drawn attention already to the fact that, although admirable, the Law Commission is not infallible on the Bill. What is said to be one of the most important points about the custom of the country with regard to fencing was not put in by them as one of the matters to which regard should be had in deciding negligence.
I suggest that the Law Commission reports should not be given special status. We should draw the line clearly, as I have said. Following the splendid example of the hon. and learned Member for Mongomery (Mr. Hooson), I will give an undertaking to keep an open mind. I implore the Lord Chancellor and the Law Officers to do the same. Do not let us try to insinuate subsections into Statutes dealing with quite separate matters when there is an important principle at stake which should be discussed on its merits.
I congratulate the right hon. and learned Gentleman on having had the opportunity to move the Second Reading. We will give him constructive help in the passage of the Bill through its various stages.

8.49 p.m.

Mr. Arthur Probert: I shall not wander into the highways and byways of whether we should accept the inclusion of reference to the Law Commission's report.
We have listened—I say this with respect—to two very long but erudite speeches.
I propose to be as brief as possible in illustrating the real difficulties facing the people in South Wales concerning straying animals.
It is with great pleasure that I support the Second Reading of the Bill, although, having heard the two speeches, it is with some trepidation that I think the Bill will do what many of us hope. However, as my right hon and learned Friend said, it will have a salutary effect. This is the fervent hope of many of my hon. Friends concerning the problems which I will illustrate shortly.
The Bill is the culmination of many years of hard and persistent work by

many of my hon. Friends who are present this evening. But it is right to say at the outset that we owe a debt of gratitude to the Lord Chancellor and, indeed, to the Government for fulfilling their promises in bringing it forward.
In a purely legal sense the Bill offers a radical change and departure from the old. As has been said in another place, the time has come for the law to be brought up to date with modern Statutes, for too much of our law was made in the days of antiquity when society was of a very different form and, indeed, when modern roads and methods of transport were not known.
As the law stands—I want to put this in layman's language—there is no liability on those who own animals to take the slightest care to stop them straying on to the highway. This is the kernel of the problem. This is a relic of the days when modes of travel were on horseback, walking, or by stagecoach.
It is worth remembering that in Scotland the position is different. The principle laid down in Clause 8 is already in existence in Scotland, and it has apparently caused no difficulties. Therefore, I do not know what the farmers in England and Wales are worried about—[Interruption.] In other parts of the world, too, but I am talking about the United Kingdom. Why should the farmers express such fear? Why should we lag behind Scotland in this respect as we do in so many other ways? There is a duty on those who keep animals to take reasonable care that they do not escape upon the high road.

Mr. W. Baxter: I am aware that the Bill with all its implications does not apply to Scotland, but the farming community in Scotland carries certain responsibilities. The problem is that the many miles of additional roads which have been provided and the heavy expense of providing the fences in the first place and keeping them in good repair means that it is almost impossible for a farmer to keep stock near the road. This adds considerably to the burdens of the Scottish farming community. My considered opinion, for what it is worth, is that as the farms and the animals were there before the roads for vehicular traffic, if it is necessary to put up fences and to maintain them then it should be


at the expense of the folk using the roads in Scotland, England and Wales.

Mr. Probert: I do not want to enter into a debate on what is happening in Scotland. I do not accept that the farmers should bear the expense of fencing. Who is to bear the expense where fencing is necessary is another matter. I have much sympathy with the farmers over this matter as with the rest of the public.
Clause 8 is the kernel of the Bill. But I have much trepidation about the Clause because it has been hedged around with so many conditions that many irresponsible people will be able to escape from the responsibilities that the farming community desires they should have. I think that the farming community has been ill-informed. Nevertheless, Clause 8 represents a complete break with the existing law.
About nine years ago I attempted to introduce a Bill containing provisions similar to those in Clause 8. I found to my cost how intricate and complex the matter was, but that is another issue. What appalled me at the time was the statistics which became available, and the correspondence which I received from many parts of the United Kingdom. The Bill received support from both sides of the House, as the debate on it will show, but I was appalled at the number of accidents which were occurring day in and day out involving straying animals. I discovered that each year hundreds of people were being killed or seriously injured in road accidents caused by straying animals.
Perhaps I might give two or three sets of figures to show what is happening in South Wales. For various reasons, Glamorgan and Monmouth are particularly vulnerable to straying sheep and ponies. In a recent year, 1,500 road accidents were caused by straying animals. In the constituency of Merthyr Tydvil, in one year 40 per cent. of the accidents on roads were attributable to straying animals.
I come, now, to the other side of the picture. What about the suffering caused to the animals themselves? Indeed, what about the cost to farmers? I have every sympathy with them. Anyone living in the valleys of South Wales, or travelling through the constituency of my hon.

Friend the Member for Brecon and Radnor (Mr. Tudor Watkins), which is a continent in itself, must be aghast at seeing the number of dead sheep and ponies on the roads. In one year in Glamorgan 3,000 animals were killed or injured, and one cannot be surprised that the R.S.P.C.A. has taken such an active interest in this problem.
I hope that the Bill will have a salutary effect, but it is not directly concerned with one aspect of the problem. People have a certain protection, but very often they cannot prove guilt to obtain it. I am thinking of the suffering endured by people who find a year's hard work in their gardens destroyed overnight by the depredations of straying animals. I have suffered this myself, and I know what it means. The law provides that a person can claim damages, but the difficulty is to catch the animals and prove to whom they belong. Clause 8 will help to make farmers more conscious of the need not to let their animals stray.
The interests of farmers and of the general public are bound together, and I appreciate the sincerity of the farmers in my area, and in many parts of South Wales, in their desire to find an answer to this problem. They produced an excellent report some years ago, and it is worth reading to those who have not seen it. It is no good pretending that the Bill will solve the problem. It is only a beginning, and much more will have to be done in the years to come. The Commons Registration Act, 1965. was a step forward, because it provided for the delineation, in a precise form, of common land and other open land, and the Bill will help to provide legal redress for negligence on the part of animal owners, but what I think is needed is co-ordination of policy between the neigbouring local authorities and the farmers themselves. This will do much more than any Measure passed by the House. Local authorities must study the fencing problems in their areas. Cattle grids have been mentioned. A far more strategic placing of cattle grids should be considered by local authorities.
The public must be educated in this matter. Farmers have tried to do this, but how often have we seen people inducing cattle to stray on to the verges of a highway by feeding them? One can see this every day of the week on Brecon


Beacons. For many years local authorities have carried on a policy of fencing-out, based on the fact that animals tend to wander into the streets. In my opinion, a policy of fencing-in would be far more effective. The question of fencing is the key to this problem.
As an example, let me tell the House that a farmer friend of mine recently spent hundreds of pounds in putting up hundreds of yards of brand-new fencing on a farm bordering the constituency of my hon. Friend the Member for Rhondda, East (Mr. G. Elfed Davies). One night some hooligans came along and ripped out three or four yards of that fencing. As a consequence, hundreds of sheep poured through the gap into the streets and down the valley. I saw this with my own eyes. The fault is not only with the farmers; it lies also with the public.
There are many details in the Bill about which it is possible to quibble. From the two opening speeches it is clear that many points will have to be thrashed out in Committee. Nevertheless, I thank my right hon. Friend, as well as the Lord Chancellor and the Government, for fulfilling a promise that they made some time ago to bring forward this Measure, especially since this Session is full of important legislation.
A working party must be set up to consider the wider problems of straying animals, and, in my opinion, that working party must include representatives of local authorities and farmers. If that is done we can achieve much more than the Bill can achieve now. This possibility was considered by the Welsh Office. I put down a Question in June, 1968, when the Secretary of State for Wales told me that it was being considered. I repeat this request. I hope that my right hon. Friend and the Minister of State will discuss this question, because Clause 8 will not solve the problem in South Wales. The Bill represents only a beginning. If we can achieve co-ordination between farmers and local authorities we can go a long way towards finding a solution to this problem.

9.3 p.m.

Mr. Michael Shaw: Like earlier speakers, I welcome most of the provisions of the Bill.

It is a small but important Measure, dealing with a situation that for a long time has been vague and unsatisfactory. I particularly welcome Clause 9. The protection of livestock from marauding animals has become an ever-increasing problem on farms, especially as more and more people seems to be obtaining bigger and bigger dogs. We have only to see the horrible result of the savaging of a flock of sheep by an alsatian or other big dog to realise how serious a matter this is for the farmer.
I hesitate to join in the discussion of Clause 11(2), which seems to be a lawyer's treat. Indeed, the lawyers in the House have made the most of it tonight. Since, according to this provision
regard may be made to the Report of the Law Commission on Civil Liability for Animals",
what will happen if future legislation does not contain a provision enabling regard to be made to such a report relating to it? We seem to be getting into deep water over this, and I am not sure what will happen if future legislation in this way differs from the Bill.
The matters dealt with in Clause 8 are causing considerable concern to farmers in my constituency, as they are to farmers in the North of England generally and particularly in North Yorkshire. In my constituency there are miles of unfenced road going through land on which livestock has been grazed for centuries. I sympathise with the doubts that have been expressed by the farming community about Clause 8.
In the past the position about unenclosed land has been clear. For several years after the passing of this Measure the position will be unclear. The farmers of whom I am speaking have for some years found it difficult to pay their way, what with increased credit restrictions, increased costs and lower incomes. They will find it extremely difficult if they are asked to bear additional expenditure for fencing and so on.
The Bill seems to exclude from liability animals straying on to the highway from common land, but not from unenclosed land.

Mr. Abse: I urge the hon. Gentleman to be hesitant on this issue, because I do not think that it gives an absolute and blanket exemption in respect of common


land. If it did, it would be gravely disturbing to all hon. Members who represent South Wales constituencies.

Mr. Shaw: I am glad to hear the hon. Gentleman's observations, and I hope that he will have an opportunity to elaborate them.
I understand that, prima facie, a farmer will be liable if his animals stray on to the highway from unenclosed land. My right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) said that a plaintiff would have to prove absence of care, but it seems, certainly during the early years of the operation of the Measure, that farmers will be in doubt about their duties and the degree of exception given by the Bill. Until it is known whether or not the farmer is completely absolved from liability, in certain cases he will not be free from doubt. I believe that that knowledge will come only when one or two cases have been tested in the courts.
Therefore it seems to me, as a layman. that it would be far more satisfactory if the liability was clearly spelled out, or if the exemption was equally clearly spelled out, so that the farmer knew exactly where he stood over this.
It must be a matter of doubt because the Law Commission's report itself says at pages 25 and 26:
We appreciate that our recommendation would mean, in practice, that prudent farmers and other keepers of animals would feel obliged to insure against the risks involved.
In other words the report accepts that there is a doubt. It goes on:
We should have liked to give some indication of the cost of insurance; but, owing to the lack of precise statistical information, to which we have referred above, the insurance organisations that we have consulted have been unable to tell us at this stage what premium might he charged in different circumstances.
Here we have a doubt; we have a possible liability and we have the evidence of the Law Commission's Report No. 13 that this matter of insurance has been looked into and the commission has been unable to come to a conclusion on whether the farmers can insure against possible liability, and, perhaps even more serious, what the cost would be if they could.
It would be wrong to go further into this tonight. But I believe that this matter must be investigated in some consider-

able detail in Committee before universal approval can be given to everything in the Bill.

9.12 p.m.

Mr. Tudor Watkins: I should have liked to follow what the hon. Member for Scarborough and Whitby (Mr. Michael Shaw) said. He will find, as I go along, that I agree with what he has been saying about Clause 8. I do not wish to disappoint my hon. Friends but I heartily agree with them on the real necessity of bringing in a Bill of this nature but I differ with them over Clause 8.
It was a great pleasure for me to hear my hon. Friend the Member for Aberdare (Mr. Probert). I well remember the valiant efforts which he made in 1961 to introduce a Bill of this kind. At that time I was not altogether with him but I am sure it is a pleasure for him to see this Bill before the House now. I must pay tribute to my hon. Friends from South Wales for the pressure they have put on various Ministers during the last few years to introduce this legislation.
I gather from the remarks of some of my hon. Friends that they are not altogether satisfied with Clause 8. But there is one great thing about Clause 8. When one reads the Law Commission's Report on Civil Liability for Animals one sees perhaps for the first time—it is the first time I have seen it because I am not one who delves into Law Commission reports—a draft Bill. I could suggest to the Secretary of State for Wales quite a number of draft Bills—even on local government reorganisation.
Parts of my constituency in Breconshire are vitally interested in the trespass of animals in gardens and allotments. Whatever I may say about Clause 8 does not mean that I do not welcome the introduction of the Bill. But, as my colleagues know, I have always endeavoured since I have been in this House to keep a watching brief on the results of any legislation for hill farmers. I must also declare that I am not altogether satisfied with the position of unfenced land.
The question of common land has just arisen and I am anxious to hear what my hon. Friend the Member for Pontypool (Mr. Abse) has to say about this and what the Solicitor-General will say


in reply. I have assumed that common land is completely out, and the controversy is about Clause 8, so far as I can see, the
Duty to take care to prevent damage from animals straying on to the highway.
On Second Reading in another place, the Lord Chancellor gave a wonderful exposition of the Bill's provisions. He raised the query: what should be the legal relations between those who keep animals and those who may be killed or damaged by animals? That is covered by Clause 8(1), and I say at once that, as I see it, there is an extra liability on hill farmers.
Nowadays, the relationship between road users and users of land has some dangerous aspects. The Law Commission points out that between 1961 and 1966 54,000 sheep were either killed or injured. In my own constituency, on the road referred to by my hon. Friend the Member for Aberdare, through unenclosed land on the Brecon Beacons, a survey among 19 farmers in the 12 months ending 31st August, 1965 revealed that 320 sheep, 13 ponies and four dogs were killed by vehicles, to a total value of about £2,000.
I ask the House to consider what attempts have been made to prevent sheep trespass. There has already been reference to the report by the National Farmers Union in Glamorgan and Monmouthshire in 1962. Perhaps my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) will allow me to tell the House what that report says about the cost to Ebbw Vale Urban District Council. The cost of fencing housing, school and recreational land and other requirements came to £200,000 in 40 years, all in an effort to stop trespass by sheep.
Although, in my opinion, common land is excluded, sheep may still come along the highway to graze in other parts. I was interested to hear what the right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton) said about the Highways (Provision of Cattle-Grids) Act, 1950. I took part in the debates on that Act, and I am glad that it came into force at that time, because, with a majority of six, it was not all that easy to get much legislation through. But

in Senni, a place well known to hon. Members from Wales, sheep are not now crossing the cattle-grids. One ingenious farmer has stopped his sheep at least coming down by putting some pretty colourful fertiliser bags on the grids past which the sheep will not go. Perhaps they think that the feminine population of the village has come up to protect the grid —I do not know.
In a way, I wish that the Attorney-General were here, with his Welsh background, to help us. A sheep's instinct makes it travel to the places where its ancestors pastured. Is not that correct? Perhaps that is the reason why sheep come down to Pontypool, Rhondda and Aberdare, now that the Industrial Revolution has cleared away all the agricultural land which used to be there. There must be something in it. Instinct makes a dog turn round a few times before he lies down. What about the instinct of the sheep? Whatever we may think, no legislation can stop that.
By this vulnerable Clause 8, the Lord Chancellor has made valiant attempts to safeguard the farmers' interests, but he has not gone far enough [HON. MEMBERS: "0h."] I almost think that I am in chapel as I hear the deacons murmouring by my side. There will be hardship. There is unfenced land in my constituency, and for one owner I know it will be difficult to fence the land. It is not common land; it is private land, but there are no fences. In North Radnorshire, in the Begiuldy parish, there is unenclosed land belonging to the Crown. Is that exempt? By custom, the thousands of acres in that area are not fenced at all. These are small marginal farms.
The expense of fencing is £800 a mile, and then there is the cost of maintenance. It is impossible to fence where an occupier has land on both sides of the road, since sheep will want to cross for watering. There would have to be many points of access. I wonder whether my hon. Friend the Member for Pontypool would elaborate on what he promised his constituents in an interview in the South Wales Argus, that he would give every support to getting grants for these fences on unfenced roads. Could these grants be made under the farm improvements scheme? It does not seem to be possible.
At the beginning of the century it was calculated that there should be one


shepherd for every 150 sheep. One cannot get those shepherds now, so there is a lot to be done to keep the sheep in the farms. Insurance is a great problem. My hon. Friend the Member for Pontypool said that it would not cost more than £5 to insure against this new liability. I challenge him to name the company which offers those terms, since collecting the premiums would be a good job for me when I am retired. I cannot think that that is possible.
A number of farmers on the Brecon Beacons cannot get insurance at all for sheep wandering on trunk roads. Where they can, they have to agree that the first sheep will not be covered. Thus, if only one is killed there is no hope of being paid. This new liability will be a burden on farmers. The average loss on this road is £300 a year. One farmer who cannot get a premium loses on average 25 sheep a year.
I was glad that the right hon. and learned Member for Huntingdonshire (Sir D. Renton) talked about the normal practice in farming with regard to fencing. I do not like my farming constituents to have to go to court to decide normal fencing practice. Some highways across Ministry of Defence land are not fenced. The owners of sheep which are brought on to the land pay charges to the Ministry—so much per head per year. If the Minister was obliged to fence those lands where the county council was highway authority and maintained the roads, he would have to pay a terrific sum.
Last weekend, when I was coming over one of our mountain roads which is fenced on both sides, a fox suddenly ran across the highway. If that had caused an accident to me, would it have come within the provisions of the Bill? After all, a fox is an animal.
Farmers keep registers of earmarks of sheep, and I suggest that similar registers should be kept in respect of ponies. When ponies are under the snow no one wants to identify the animals as being theirs, but when the good days come along again the owners soon drive them down to markets.
Another point is the maintenance of stock-proof fencing on the motorways, and in this connection I have in mind the Heads of the Valleys road. The other day a constituent complained to me that

because of the stock-proof fencing she was not able to take her dog for a walk on that road, which is not a motorway in the same sense as is the Ml. But then a farmer close by complained that the stock-proof fencing does not prevent his sheep getting into the road. What I did was to refer the writer of the one letter to the writer of the other.
A working party should be set up to look into the whole matter. An understanding among farmers is preferable to legislation, and education authorities could play their part in many ways, particularly with regard to the feeding of sheep, ponies and other animals within national parks.

Several Hon. Members: Several Hon. Members rose—

Mr. Speaker: Order. We shall probably suspend the Rule at Ten o'clock. I remind the House that the night is young, but not everlasting.

9.27 p.m.

Mr. Paul Hawkins: It is almost impossible adequately to follow the delightful, witty and wise speech of the hon. Member for Brecon and Radnor (Mr. Tudor Watkins). I was fortunate enough to drive through his constituency on two occasions last year, and I was shocked to see so many dead sheep by the side of the road. In East Anglia we do not have roads of this kind passing through that type of land.
I give the Bill a general welcome. In certain respects it is long overdue, and it will clarify quite a number of difficult points. In particular, I welcome Clause 9. There have been an enormous number of bad outbreaks of sheep and poultry worrying by dogs. More and more people seem to keep dogs for a certain length of time, but when the licence has to be renewed or when they are about to go on holiday they let their animals roam free and never again assume responsibility for them. It is becoming an extremely worrying problem all over the country. Even in my fairly sparsely populated countryside we are getting what are almost packs of dogs that have been abandoned, and they cause an immense amount of damage.
In the built-up areas and on the autskirts of towns, dogs are also the cause of many bad accidents, and we must very carefully consider how we can deal with


that problem. One can usually trace the owner of a dog, but I do not know whether one could trace the owner of a cat. Cats cause a large number of accidents. It is as difficult to trace their owners as it would be to trace the owner of a fox.
Clause 8 will cause a great deal of controversy. I hope that the Committee will consider the remarks about it made by the hon. Member for Brecon and Radnor. In an area where there are a lot of sheep or ponies, fencing ought to be considered both by the owners of gardens, for their own sake, and in a wider area by the owners of stock near to towns. On land adjacent to open roads such as there is in many parts of the hon. Member's constituency, fencing would be quite impossible. It would make the farming of those areas quite uneconomic and it would spoil the enjoyment of the whole countryside by tourists.
Coming back from Swansea I saw a sheep killed on a road. A man drove by me on a fairly wide, winding road at about 80 miles an hour going downhill. There were notices saying that motorists should beware of sheep and other straying animals, but he knocked the sheep over and killed it and did not attempt to slow down. Driving in the countryside has become extremely bad. When I was younger I was lucky enough to be able to ride. In those days one always found that motorists would pull up and take great care when passing riders on the grass verge.
I have spent a lot of time driving animals through the streets of King's Lynn. A large number of cattle would come through from trains and be taken in the dark for lairage before they were sold the next day. The consideration and courtesy which one had from motorists and others was extraordinary, but today there seems to be quite a different breed of motorists. They do not seem to take much care when they pass flocks of sheep or people moving cattle or when sheep or ponies may be passing across open land. This is the cause of many accidents.
I welcome most of this Bill. I hope that we shall go carefully into Clause 8 to see that we satisfy as many people as possible. It is a difficult Clause. I hope

that a practical and sensible attitude will be adopted so that as many farmers and townsmen who live near open land may be considered and that we can get a satisfactory Bill.

9.34 p.m.

Sir Barnett Janner: Seven years ago, after my hon. Friend the Member for Aberdare (Mr. Probert) had started the ball rolling, I asked leave of the House to introduce a Bill dealing specifically with items included in Clause 8 of this Bill. Since then on seven occasions in seven successive years the House has given me permission to introduce Bills. When I heard my right hon. and learned Friend the Solicitor-General today speaking about Clause 8 I hardly knew whether it was he or I who was speaking. I thought it might be a ventriloquist act performing some of what I said about eight years ago.
How can hon. Members overlook the fact that considerable damage and death is caused by animals straying on to roads and that the law has at no time given protection to the dependants of those killed or to the persons injured? I do not understand why legislation has not been introduced before, if learned judges who have considered the cases on this subject, have, when they have made any declaration at all, invariably declared that the law should be altered. If only some of those who have spoken against Clause 8 had received some of the poignant letters that my colleagues and I have received from those who have suffered because of the lack of compensation they would have changed their minds. Negligent farmers, or people who are not farmers, who have allowed cattle or horses to stray on to roads because of negligence, thereby causing injury, have been liable to petty fines but not liable to pay compensation to those who have suffered damage. I wish that hon. Members would bear this in mind in considering what approach to take to the Clause.
In view of the time, I shall resist the temptation to read again some of the letters I have received on this subject and other letters which I have not yet read in the House. Those who have spoken against Clause 8 or who want it damped down to such an extent that it would be ineffective would do well to read the letters that I have quoted on


previous occasions and some of the decisions and comments made by learned judges and others, which have been supported by the Law Commission.
In some areas it would be difficult to require farmers to fence, but there is no reason why steps should not be taken so that roads which adjoin unfenced land there should be so clearly marked, either by the occupiers of the land or by the local authority, as to place the onus upon persons entering the area, to be cautious.
Fencing is very important in certain areas. I read what I told the House in 1968 about the New Forest.
When parts of the New Forest were fenced in, the statistics for accidents on one of the lengths of trunk road so fenced, given by the Hampshire and Isle of Wight Constabulary, showed a fall in the number of accidents in which animals were involved. The figures before the fencing was completed on 1st July, 1964, were: 1961, 81 accidents; 1962, 94; 1963, 80. In 1964, the number of accidents was reduced to 35, and in 1965, the first full year of fencing, the number fell to three. In 1966, one accident took place."—[OFFICIAL REPORT, 11th December, 1968; Vol. 775, c. 437.]
I bring that to the notice of those who use the question of fencing as the argument against the provisions of Clause 8, and ask them to consider alternatives. Fencing is worth while wherever it can be put up. The figures I have given make it obvious that the drop in the accident rate can be tremendous. Accidents can almost be eliminated if fencing is provided in certain places.

Sir Douglas Glover: The hon. Gentleman will appreciate that fencing of the roads in the New Forest probably involved 100 miles, but that to do the same thing in Scotland would probably involve 10,000 miles.

Sir B. Janner: If the hon. Gentleman reads the Clause again he will see that fencing is covered by the provisions.
I believe that the restrictions in the Clause are greater than they should be, and that in Committee we must devise a method by which people will not be able to avoid paying compensation because the person claiming it cannot for financial or other reasons take proceedings.
There is another, very human side to the matter. People who are injured, or the relatives of someone who has been

killed, must not be placed in the position of having to depend on the decision of the court and possibly the Court of Appeal and the House of Lords, as to whether there is liability because of the uncertainty of the law. These are things that we shall have to consider very carefully. I see hon. Members opposite nodding assent, but I do not think that I mean exactly what they mean. They will see what I am driving at when I say that it is very important that we should restrict the possibility of people being prevented from obtaining compensation because of lengthy litigation. By the time such litigation is over the moneys awarded may well not be needed any more, because the injured person or the relatives of a person killed are dead.
Clause 8 is a very belated response to appeals that many of us have made, but it is a response. What I am saying is an accusation against both Governments. Neither side of the House has accepted the appeals I myself have made for years, as have others, except to the extent of saying, "This is all very nice. We think that you should be allowed to introduce a Bill". Then some hon. Member calls out "Object" when Second Reading is proposed, and there is an end of the matter for that week, and so on from week to week for Session after Session.
I shall not speak about the other Clauses, but I am very glad that at long last Clause 8 has been introduced. I hope and trust that it will be made sufficiently strong to prevent delays which stop those entitled to compensation from receiving it. If a cabbage in a field is destroyed because of a farmer's negligence, the owner can obtain compensation, but one may not get anything from him if his negligence results in the destruction of a life. These things are a great and important issue to thousands of people. I hope that hon. Members opposite will realise that as well and do what they can to see that an effective compensation system is set afoot. If that is done, we shall remedy an evil which has existed for many years.

9.45 p.m.

Sir Douglas Glover: I was driving home from this illustrious Chamber about two years ago, and if I had been thinking about the speech which


the hon. Member for Ormskirk (Sir D. Glover) had made, I would probably have been driving at 60 m.p.h. and would probably, therefore, not have been here tonight. Turning a corner, I found a mad bullock galloping towards me at about 20 m.p.h. But at the time I was thinking about the brilliant speech which had been made by the hon. Member for Brecon and Radnor (Mr. Tudor Watkins) and so I was travelling at 40 m.p.h. I was able to stop without hitting the bullock. But the incident brought to my mind very graphically the dangers of this problem on the road. I was a shaken man on the last 10 miles home. My car stopped about 6 inches from the bullock, and I could easily have been killed or injured.
We are right to do something about this. The answer to it is that we have to accept—and, of course, we hate to say this—that there is a commercial value to life, a viable value, as it were. The answer for hill farmers and others is to be insured against this sort of fatality. I am sure that it would involve them in very small premiums. I do not think that one can demand that thousands of miles of hill and mountain roads should be fenced. It would be entirely uneconomic, although I have heard some hon. Members tonight at any rate semi-advocating that it would be done. As has been pointed out, it would in any case spoil the view of the countryside.
Traffic in the country has increased enormously over the last 25 years, and it seems to me that chickens, pigs and sheep have become much more traffic-conscious than they were when I was a boy. [Laughter.] It is true. Hon. Members can laugh as much as they like, but when I was a small boy and there were very few cars on the road, in the mountains of Scotland all the sheep congregated on the road and did not get out of the way. Now, however, mountain sheep in Scotland will look at one, wink an eye, wait until the last moment and then jump out of the way. They know what they are doing. It is not accidental. That is totally different from when I was a small body. They have got used to traffic.
But it is a problem. I think that we have to have some system whereby, if a person is unfortunate, the accident is

covered by insurance. I do not know what the premium would be, but I think that it would be very small. For the last 40 years I have been paying 10s. a year against some enormous accident which may happen to someone who does any work on my house. It is unlikely to happen, but if it did I should be glad to have been paying that 10s. a year because I might be faced with an insurance claim of £10,000 from someone who had perhaps fallen off a ladder.

Mr. Speaker: Order. I hope that the hon. Gentleman will come from autobiography to the Bill.

Sir D. Glover: The same problem applies in this case of the hill farmers with sheep or cattle. If the whole country were insured against this sort of accident, the premium, I believe, would be minimal. But it would give the farmers great assurance that they need not worry too much, and it would also give to travellers an enormous assurance that they themselves would not be put at great risk.
I have very little sympathy for people who drive along mountain roads at 80 m.p.h. when there are warning notices displayed about sheep or deer. I am not sure that the State, or anybody else, has a responsibility if, as a result of their foolishness, they are involved in an accident. We cannot protect people against their own stupidiy. They should drive at a speed at which they can stop if they see an animal. In daylight the animals can be seen long before they get anywhere near the verges of the road, and at night people should be driving even more slowly.

Mr. Hooson: The practical difficulty is that a man may be driving at 80 m.p.h. with nobody else in the car and with nobody else on the road, and if a sheep is killed, under the provisions of the Bill how could the farmer establish that the motorist had been driving at 80 m.p.h.?

Sir D. Clover: This is one of the difficulties. I do not see how he could, unless the motorist, like Paul on the road to Damascus, is converted and reports to the police that he has killed a sheep.

Mr. W. Baxter: The hon. Gentleman seemed to imply that a motorist should drive at reasonable speed, as he did in his encounter with the mad bullock, and


be able to stop in time. He then went on to speak about the need for farmers to insure against accidents, although he proved conclusively that most accidents were due to people driving at too high a speed. Surely the responsibility for insuring against an accident caused by a person who is driving at too high a speed should not be on the farmer?

Sir D. Glover: The hon. Gentleman and I are usually speaking on the same wavelength, but I think he has slightly misunderstood me. In my encounter with the mad bullock one of the farmer's men explained what had happened, and the farmer was not negligent. I think that the farmer should be insured and that the premium he would have to pay would be very small.
Let us not forget that when a man driving at 80 m.p.h. gets involved in an accident the insurance company will almost certainly contest the claim in the courts. I do not see how one can deal in this way with the ordinary reliable citizen, where the family may lose the wage-earner because of a minor accident to an animal on a road in hill country. I do not want to push this too far. It can be discussed in detail in Committee.
I do not think the right answer is to try to make all roads impregnable to cattle and sheep. The right answer is to do this by insurance. If this were mandatory throughout the country the farmer could be insured in the same way as I am insured against an accident to anyone working on my premises.

Mr. W. Baxter: Mr. W. Baxter rose—

Mr. Speaker: Order. Interventions prolong speeches.

Sir D. Glover: The same thing could be done with straying cattle. This is a very serious problem, but not nearly so serious today, I believe, even with all the growth of traffic, as it was 10 or 15 years ago, because of the strange educational process among the animals.
I was interested in the amusing speech of the hon. Member for Brecon and Radnor. What happens if a fox jumps over a fence? Twice in my life a body which for 10 seconds I could not identify jumped over a fence right in front of my car. I did not know whether I was avoiding a woman, a man, a child

or an elephant. It was a terrifying experience, but if I had been killed, as was only too likely, the farmer should not have been held responsible. This is a natural hazard of human existence. Until we tame the fox, we cannot put it into the Bill. It is a wild animal. If we "go for a Burton" because we run into one, that is just unfortunate. It would lead to by-elections, which might be welcome, and the fox might become popular.
This problem needs to be dealt with, and we should not get too excited about it. An insurance premium paid by the farmer would be the answer. If this were applied all over the country, I believe that the cost in, say, the Scottish Highlands, where the traffic, except in the summer, is very thin, would be about £2 a year. A farmer would consider that a good way of avoiding much anxiety. I am not an expert, but I think that that is about the cost.
It is not practicable to fence in miles of roads in Scotland and Wales. That will reduce amenities far more than improving safety.

9.58 p.m.

Mr. Alec Jones: It is obvious from the speeches already made that there are many different attitudes towards the Bill and its problems, differing according to the constituencies we represent and our own experiences. The experience of the hon. Member for Orals-kirk (Sir D. Glover) with a bull in South Wales affected his attitude.
I wish to represent the attitude of those in the mining constituencies of South Wales. We are not so much concerned with accidents caused by dogs, although we know that they are serious. We are terribly concerned with the serious problem caused by sheep straying in our valleys, and we are thinking not only of fatal accidents. Sheep stray into our towns, destroy our gardens, foul the pavements and streets, damage our property and occasionally cause fatal accidents. It is the whole problem and not an individual fatal accident which concerns me.
This subject has been discussed with a great deal of humour. Some people think that it is a joke, and I can understand their attitude. Whenever television cameras appear on Rhondda, they cannot refrain from showing a picture of sheep eating out of a dustbin. Visitors to our


valleys think that it is an ancient tradition to have sheep wandering round our streets. I could add a personal note—

It being Ten o'clock, the debate stood adjourned.

Ordered,
That the Proceedings on the Animals Bill [Lords] may be entered upon and proceeded with at this day's Sitting at any hour, though opposed.—[Mr. McBride.]

Question again proposed, That the Bill be now read a Second time.

Mr. Jones: Many of us could relate humorous experiences. Some months ago, I went out of my house in pyjamas and bedroom slippers at about four o'clock in the morning, and chased a sheep down the street because of the nuisance that it was causing. Such events tend to make the situation a laughing matter. However, my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) described it correctly as a serious joke. Certainly the joke situation has long since passed for my constituents. We are concerned with a serious nuisance to householders, damage to property, and danger to human life.
In the other place, the Lord Chancellor said that the law on this matter is mainly common law and is only to be found in judges' decisions going back over the centuries. They are decisions which were made when valleys like Rhondda were rural areas rather than the heavily built-up urban areas that they are today. They were made in times when social and economic conditions were different, when the motor car had not been heard of, and when people's lives were so harsh that they did not have to worry about the nuisance and other problems caused by straying sheep.
Dealing with the civil liability for animals, the Law Commission said in paragraph 1 of its report:
It is widely recognised that this branch of the law is in an unsatisfactory state and that it continues to apply rules and draw distinctions which make little sense in modern conditions.
It is for that sort of reason that I welcome the Bill. It simplifies our law and brings it up to date.
I welcome the whole Bill, especially Clause 8, though I suspect that it is too

weak to deal with the problem with which it seeks to deal. It talks of the duty to take care to prevent damage from animals straying on to the highway. This is bound to be a controversial issue, because everyone has different interests. The owner of animals obviously has a different interest from that of people who are likely to suffer nuisance, damage or injury from straying animals.
At present there is no liability on the owner of animals to take the slightest step or exercise the slightest care to stop them straying on to the highway. I do not believe that anyone can defend that position today, whether he be the owner of animals or the person likely to suffer as a consequence of those animals straying. As my hon. Friend the Member for Aberdare (Mr. Probert) said, Scotland has been wiser in this rspect and already has made provision to deal with the problem.
I understand from the report of the other place that it was pressure from the N.F.U. which led to the insertion of paragraph (e) in Clause 8(2). However, I hope that my right hon. and learned Friend will spell out to us exactly what that paragraph means. If it means that in areas where fencing is not the normal practice farmers or any other animal owners can use the provision to avoid the duty to take care to prevent damage caused by animals, it will not do. It will not solve the problem that people in South Wales want to see dealt with, and it will need amending. No doubt it will be possible to do something about it in Committee.
The alternative to this type of Clause is the impounding scheme operated by some local authorities, and strongly objected to by farmers. The local authority employs a shepherd who goes round the streets collecting the stray sheep and impounding them. Their owners then have to go along to the council and pay to have their sheep returned. This method is expensive to the council, extremely expensive to the farmer, and does not solve the problem. Unless the Bill can do something towards solving the problem, it will bring further pressure on local authorities to use this method which farmers may dislike far more than the contents of the Bill.
In one part of the Rhondda local farmers, the Forestry Commission and


the local authorities have combined to meet the cost of fencing. I understand that such fencing has materially helped prevent sheep straying on to our urban areas. If such a combination can work in one valley, it is worth looking into.
I certainly commend the idea suggested by my hon. Friend the Member for Aberdare and others of a working party to consider whether we can do something, apart from the provisions in the Bill, to solve this difficult problem for local authorities, for farmers and for the people

who suffer as a consequence of animals straying.
Whatever the problem, it cannot be right that in this day and age owners of animals need pay no attention to the problem, nor take any steps to prevent their animals straying on to our highways. I trust that the Bill will at least partially remedy this anachronism.

Mr. Speaker: Before the debate continues, I remind the House that I did appeal indirectly for reasonably brief speeches.

10.7 p.m.

Mr. Emlyn Hooson: A general welcome has been extended to the Bill, with some reservations particularly on Clause 8. I do not share in that general welcome. The more I have read the Bill the more I think that it is bad.
The Lord Chancellor in another place claimed that the Bill was written so that the ordinary educated person could read it in English. The more I read it the more snags and obscurities I see in it.
The right hon. and learned Gentleman, opening the debate, referred to the deficiencies in the common law. He referred to them as uncertainties. I venture to suggest that if hon. Members here were to look back at this Bill in five years' time there will be more uncertainty in the law then, as its result, than there is today.
Hon. Members opposite, who are greatly in favour of the repeal of the decision in Searle v. Wallbank, already have doubt whether it is achieved by Clause 8. They have good reason for their doubt. I think that a coach and horses can be driven through the Bill in many respects—in the drafting of it to start with.
The complaint that has been made is that the law relating to animals has been developed over the centuries in an empirical way. It covers multifarious situations which have been brought before the courts. The complaint is that precedents, particularly the decision in Searle v. Wallbank, have hardened so that we have had bad law.
How do we propose to remedy it? We sweep away, for example, in Clause 1, all the law relating to animals which has been delivered over centuries. The accumulated wisdom of centuries is being abolished, willy nilly, though this wisdom could have been improved upon in some instances. We are replacing it by a series of legislative definitions which cannot be changed or modified save by the legislature. We are complaining that common law precedents have hardened into rules that do not fit the situations that we encounter in modern life, but we are changing it by having legal definitions which cannot be changed except by this House. The whole process is likely to result in the greatest possible disappoint-

ment to those who base their hopes on the Bill.
Perhaps I might refer to some of the drafting to illustrate my criticism. Clause 2(1) says:
Where any damage is caused by an animal … any person who is a keeper of the animal is liable for the damage.….
In Clause 2(2), just over the page, we see the words:
Where damage of any kind … is caused by an animal
etc. "liability is imposed. There is a change from "any damage" to "damage of any kind"". Presumably the drafter sees a distinction between one and the other. I have studied the Bill, and a number of distinguished legal friends have looked at it, and we cannot see any reason for that distinction, but in interpreting the Bill a court is bound to think that there is some distinction intended by Parliament, otherwise the same words would have been used.
Under Clause 2(1), where
any damage is caused by an animal".
the liability attaches to the keeper, yet under Clause 5(1):
A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.
Here the sufferer is wholly responsible. The keeper of the animal is not liable. That must follow. How can the keeper be liable unless he has caused the damage under Clause 2? Clause 5 is either an unnecessary piece of nonsense, or it has some significance which has escaped me entirely.
Clause 5(2) says:
A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.
As the right hon. and learned Gentleman knows, the defence of volenti is available in all circumstances of this kind. This is entirely surplusage. Was the Bill written so that the man on the Clapham omnibus could understand it? It introduces more difficulties than a Bill drafted in ordinary legal language.
Under Clause 5(3):
A person is not liable under section 2 of this Act"—


which imposes the liability—
for any damage caused by an animal kept on any premises or structure to a person trespassing there …
Animals of this kind are normally kept in fields, not in premises or structures. Does the word "premises" cover a field? It does not normally do so in the interpretation of other Statutes, nor does "structure", and yet the very mischief that we are dealing with here concerns animals such as hulls which may have a dangerous propensity, and which are kept in fields.

Mr. Speaker: Order. I hope that the hon. and learned Gentleman will not deal in too much detail with what are Committee points.

Mr. Hooson: I appreciate that, Mr. Speaker. I made a general criticism, and I illustrated it by reference to two matters. I could refer to many more, but I do not intend to do so.

Sir D. Glover: I think that the hon. and learned Gentleman is making the most profound speech that we have heard on the Bill, and I think that the House is listening with great interest. Does this mean that if I am gored by a bull in a farmyard the farmer will be liable, but if I am gored in a field he probably will not be so liable?

Mr. Hooson: It is not that point that I am discussing. It is in a way a Committee point. It is the liability for trespass, the liability that a farmer, or keeper of an animal, might owe to a trespasser. If the trespasser was on premises or a structure, the farmer would not be liable, but it does not make it clear whether he would be liable if the trespasser was in a field.
Clause 8(1) seems to make no sense at all. If this is a Bill to be understood, as the Lord Chancellor claimed in the other place, by the layman, what does Clause 8(1) mean to the layman? The answer is, "Nothing at all". It abolishes the rule in Searle v. Wallbank, of which the layman is unaware in any event. What does it mean to a member of the public? If we are to have simple drafting in Bills, for heaven's sake let us have Bills which the layman understands, instead of this kind of provision. Then there are the qualifications contained in Clause 8(2) which says:

The following matters shall be included among those to which regard must be had in determining…
What weight is to be given to them? Nothing is said about that. I rather preferred the Private Member's Bill introduced by the hon. Member for Leicester, North-West (Sir B. Janner).
If we want to tell the public exactly what is in the minds of the legislature we can scrap the whole of Clause 8 and replace it by a Clause which has been drafted for me, and which would provide that:
An owner or occupier of land shall be under a duty to take such care as is reason able to see that damage is not caused by animals straying therefrom on to a highway.
That is all that needs to be said.

Sir B. Janner: Does not the hon. and learned Gentleman agree that the layman thinks that he can get compensation? If he reads the many letters which are received by hon. Members he will agree about that. People are amazed when they find that they cannot obtain compensation. It is for the lawyer and the layman to realise that before the bringing in of this Bill compensation was not available: now it is to be made available.

Mr. Hooson: I am not arguing about that point. This is a very badly drafted Clause if it is to achieve what hon Members opposite want it to achieve.

Mr. Abse: Mr. Abse rose—

Mr. Hooson: The qualifications in Clause 8(2) are entirely unnecessary. The whole Clause can be changed and drafted in a quite simple way.

Mr. Abse: As spokesman for the Liberal Party, will the hon. and learned Gentleman explain to us—apart from his iconoclastic approach towards the drafting of the Bill—whether he does or does not believe that there should be a major amendment to the law to prevent sheep from being on the streets of Tredegar or Pontypool?

Mr. Hooson: My point is that what should apply in the hon. Member's constituency—an urban industrial constituency—should be different from that which should apply in Brecon and Radnor, a rural constituency, which his hon. Friend represents, because the one area is not comparable with the other. In Brecon


and Radnor there are thousands of acres of unfenced land in remote rural areas. Why should such an area be encumbered with the same rules as those which should apply to Tredegar?

Mr. Abse: Mr. Abse rose—

Mr. Speaker: Order. This is a debate, not a duologue.

Mr. Hooson: I am pointing out that it should be merely necessary for a person to use reasonable care. I say that the judges should interpret this question and that there is no need for all these qualifications, which introduce far more complication than is necessary or desirable. In my area there are thousands and thousands of acres of unfenced land and it would be ridiculous to require either the public—through local authorities—or the farmers to fence all the land. If notices were posted by the highway authorities warning people of the presence of animals the responsibility thereafter should rest with the motorist. He can insure against it if he wants to. It is not only the farmer who can insure.
In an area such as that of the hon. Member for Pontypool (Mr. Abse) there is much to be said for putting the boot on the other foot. There the liability should primarily attach to the owner of the animal. It is important to draw a distinction. The trouble with a Bill of this kind is that it imposes a general rule for the whole country without allowing sufficient scope for sensible interpretation. The common law allowed a flexible approach. The criticism is often made that Searle v. Wallbank went too far. In this Bill we are going much too far in another direction.

Mr. Abse: It is abundantly clear from the provisions of Clause 8(2) paragraphs (a), (b), (c), (d) and (e) that what the hon. and learned Member is asking for is available, namely, a distinction between different types of land, different types of area and different types of circumstance in which a breach of care can take place. The Bill draws a distinction between the hon. and learned Member's constituency and mine.

Mr. Hooson: My view is that, although it attempts to do so, it does not succeed. The point can be further illustrated by a reference to Clause 8(2) which says:

… a shall not be regarded as committing a breach of the duty to take care by reason only of placing animals on any common land or town or village green in any case where it is lawful for him to do so.
But in Brecon and Radnor and in my constituency and in many others there are vast areas of unenclosed land which are not commons. Why should those farmers be required to enclose when the commons do not have to be enclosed, which is an interpretation which might be put—

Mr. Speaker: Order. With respect, the hon. and learned Gentleman is drifting into a discussion of a Clause which he might wish to substitute for Clause 8.

Mr. Hooson: What I am trying to show is that Clause 8 does not meet the intention of, for example, the hon. Member for Aberdare (Mr. Probert). He will find that, when this is interpreted by the courts, there will be a different result from what he intends. It does not satisfy people, like the hon. Member for Brecon and Radnor (Mr. Tudor Watkins) and me, who have responsibilities towards farmers.
The whole thing should be considered anew. It is useless to say that the duty to fence should be on local authorities and that there should be grants: the duty is not on local authorities and there are no grants and we are passing the Bill in the light of that knowledge.
The other controversial feature is Clause 11(2), which provides that reference can be made to the Law Commission's report in interpreting this Statute. I spoke on this principle when we debated the Matrimonial Proceedings and Property Bill the other day. The Solicitor-General referred to what I said then. I had not then read the report of the Law Commission on the interpretation of Statutes but I have now repaired this omission and I adhere to the view which I expressed then: I am not prepared, as most hon. Members were, to condemn this kind of provision outright. In a Bill as badly drafted as this, it would be a great help to refer to the report.
But I am not sure that it is actually the Report that should be referred to. I prefer the suggestion of an Explanatory Memorandum which will eventually be attached to the Bill and be considered


and approved by Parliament after Third Reading. As I explained in the previous debate, I think that we should review in depth the relationship between Law Commission and Parliament; this is vastly important. On this Bill alone, this provision introduces a major constitutional change; it is that, in the interpretation of an Act, one can consider the report of a Law Commission.
The vast majority of lawyers to whom I have spoken are against this proposal. I would vote against this provision on Third Reading, but I maintain that it warrants detailed debate. The Government were at fault, however, in not arranging a debate on this general principle embodied in the Law Commission report rather than putting it almost surreptitiously into two Bills in this way.
Clause 11(2) is an important constitutional departure. I am basically in favour of this kind of departure, although I am not tied—indeed, I have grave doubts about it—to this particular provision as the right way to do it. But we should not pass a Bill before there has been a general debate about the principle in the Clause and in that one only.
I notice, Mr. Speaker, that you are very restive, because I have taken some time to deal with this Clause. One would not wish to do so in a debate on an Animals Bill, but, since the Government have introduced it and since it is of such major constitutional importance, it is impossible for hon. Members to ignore it. That is why I have taken a little more time to deal with this important matter than I otherwise would.

10.25 p.m.

Mr. Leo Abse: Lawyers have a natural tendency to want to make Bills esoteric, understandable, perhaps only to themselves and their colleagues. I can understand that someone as conservative as the hon. and learned Member for Montgomery (Mr. Hooson), as spokesman for the Liberal Party, deplores that a Bill has been produced by the Law Commissioners which, as the Lord Chancellor said, spells out the matter in simple language, perhaps repeating some of the existing law, in a way which can make it something of a source-book for lawyers and laymen. I am not so conservative as to worry if solicitors, in the light of the Clause which has aroused so much ire, are able to turn directly to the report

of the Law Commissioners and see the reasoning and approach which has led to this important Measure.
Nowadays, there has suddenly blossomed a boundless enthusiasm for the nation's right to amenity. It has become voguish. Apparently, under the threat of modern conditions and new technologies, the whole question of the quality of life to be enjoyed by citizens rivets the attention of presidents and premiers. High-level and, no doubt, fascinating meetings take place at which our leaders engage in dialogues out of which are supposed to come new advances in technology which will save our amenities from yet other new advances of technology.
But all this blather, as some of us regard it, sounds hollow to those who represent, as so many of us present tonight do, the valleys of South Wales. For we are still struggling to emancipate ourselves from the incubus of past reckless industrialisation. We are trying to get away from housing originally built to stable labour, not to create homes for people to live in. Tonight, we are glad that we have a Labour Government who are taking the initiative to end laws which were created for a rural community but which have been maintained overlong to protect the vested interests of farmers, even though these mediaeval laws have caused havoc and are continuing to cause havoc in our industrialised valley townships.
The drive shown by this Labour Government in what they are doing for the amenities of the South Wales valleys is appreciated by all our constituents.

Mr. Speaker: Order. The hon. Gentleman must not broaden the debate; otherwise, we shall have a very wide debate on the amenities of Wales and, indeed, of Great Britain.

Mr. Abse: I shall come to the point, Mr. Speaker. But, with respect, there is no more important aspect of amenity in South Wales than that we should have environmental conditions free from the ravages of sheep and ponies. [Laughter.] Hon. Members may think that this is diverting and a matter for mirth. If they were inhabitants of some of the constituencies in the South Wales valleys, they would not think it amusing. The blunt truth is that, at last, the Bill puts people before sheep. [Laughter.] It will


be noted in the South Wales valleys that hon. Members opposite mock and scoff when we plead for greater amenities for the people of our valleys.
It is no laughing matter to the housewife of Ebbw Vale, Pontypool or Aberdare and the other valleys that each week, when the refuse collections come round, she finds to her dismay that all her work is for nought because of the pillages of sheep coming down from the mountains. It is no joke to old-age pensioners in Pontypool or Ebbw Vale that, after they have worked hard to create their gardens, they find them almost disappear overnight. It is not funny when, as constantly happens, sheep and ponies sweep across housing estates causing injury and damage, or when, as happened within recent months, sheep come into the playgrounds and knock down children even within the walls of the playground. These things are happening now because of the inadequacies of the present situation.
Even our dead are not protected from the ponies and sheep. There is no sanctity in our burial grounds because this situation has been allowed to continue, largely through indifference and because too many concessions have been made to farming interest. [Interruption.] There have been far too many concessions.
The Bill will undoubtedly mean that farmers will no longer be able, recklessly and without hindrance, to allow their cattle to wander on to roads or, without fear of consequence, disregard the most elementary precautions in the supervision of their flocks. If a farmer is prudent, is prepared to take reasonable precautions and understands that he, like everybody else in the community, has a duty of care, he will be able to take out a public liability policy at a small premium, which is surely what the community should expect. That will be far preferable to men, women and children being injured on our roads without the possibility of obtaining compensation.
At a time when farmers are seeking the sympathy of hon. Members because of undoubted genuine difficulties, this is a very bad moment for them to be suggesting that they should be allowed to have discriminatory legislation in their

favour which would enable them not to care, if they are so minded, whether or not their animals go on to the roads or on to other people's property.

Mr. Michael Shaw: The hon. Gentleman claims that farmers will be able to take precautions by taking out an insurance policy at a small premium. Does he have any evidence to support his claim that it will be a small premium and that farmers will be able to obtain such policies?

Mr. Abse: Naturally. Those of us who have been concerned with this matter would not have been putting pressure on the Government to introduce legislation of this kind without informing ourselves of the position. The hon. Gentleman may be sure, as the Law Commissioners hinted in their report, that precautions can be taken. Naturally, until the Bill was drafted and was available, and because there must be a great variation of possible premiums between one area and another and between one farmer and another, it is difficult to give an answer for each case.
If I am asked what the average cost will be, my answer is that the figure mentioned by an hon. Gentleman opposite earlier is not far out. The House will not expect me, having had rather confidential discussions on the subject, to state publicly, in terms, the precise figures. However, suffice to say that for most people £5 would be more than what they would be likely to pay. In view of my past contributions to debates generally, hon. Members will accept that I would be unlikely to make reckless claims.
Perhaps some farmers will not be able to obtain policies for public liability. Certainly the "gooseberry" farmers, as we call them in South Wales, will not get them—not when their cattle are on council house estates, when they have no wintering quarters and when they allow their sheep to graze on unenclosed land. Nor should they be allowed to have the protection of these policies. They are completely anti-social. Their cattle and flocks destroy the amenities of many people, all because these farmers are out to get the sheep subsidy.
Some other farmers may not be able to get public liability policies, and the


House must face this. In a heavily industrialised area insurance companies may not wish to give such policies to farmers who hold land for grazing purposes when it is felt that the risk to human life is too great. We are entitled to ask if it is right for those farmers to continue, in a modern industrial age, to graze their cattle and flocks in heavily industrialised areas. That is why I think that good and prudent farmers within the National Farmers' Union do themselves a disservice if they seek to save irresponsible and reckless farmers from the consequences of their own folly.
The Bill's most controversial Clause is Clause 8. Concessions have already been made in another place which can dilute its effect, and as a consequence mean that it will be far more difficult to advise clients who may have suffered whether or not they have a reasonable prospect of success in claiming damages. What many of us in South Wales want is an assurance that Clause 8 as it now stands does not give an absolute exemption to those who place sheep on common land.
That is the crux of the problem. Over large areas of Monmouthshire and Glamorgan there is relatively more land of this type than anywhere else in Britain, and that is why we are so concerned that no blanket exemption should be given. For example, if sheep straying off common land cause an accident, and they have been placed on that land by a man who is reckless and irresponsible, and who in no way looks after those sheep and has no wintering quarters, I hope that the Attorney-General or the Solicitor-General will confirm that such a case will not be excluded, but that on those facts the court could find that the sheep owner was so reckless as to be liable for damages.
I observe that already within the Bill anyone who has no right to place his sheep on the common will be completely liable, but my concern is with those people who may claim and exercise rights to overstock commons in such a way that it is highly probable that the sheep will come off the commons on to the roads in their search for food.

Mr. Hooson: But, in dealing with Clause 8, does not the hon. Gentleman

appreciate that he has really substantiated my argument that the result of the Clause may be not to impose any liability on those on whom he wishes liability to be imposed, but to impose it on people who have unenclosed land in rural areas, as is the case in my constituency, and land which has never been enclosed?

Mr. Abse: The unenclosed land in the hon. and learned Gentleman's constituency will be land in an area where it will be possible to take into account its situation and the nature of the tract, as the Bill points out—the whole of the surrounding circumstances—so that what would be negligent in Pontypool would not constitute negligence, quite obviously, in Montgomery. That is why Clause 8 is spelled out, and the hon. and learned Gentleman is advertising not the foolishness of the Lord Chancellor, but his own lack of understanding of the Bill.
What we are concerned about is that there are different sets of circumstances in which it can be found that sheep or ponies are so lacking in supervision that recklessness can be shown even when the animals are placed on common land. I want it to go out from the House to the "gooseberry" farmer, as we call him in Monmouthshire and Glamorganshire, that he has to take great care in this respect, otherwise he may well find himself financially ruined. I want it to go out to reckless farmers that if they behave irresponsibly it will mean in future that as a result of this Bill they will be taking the most grave risks.
We believe the Bill is one which, although it only stumbles forward a little, is a genuine attempt to grapple with a major problem of amenity in South Wales. As my hon. Friends the Members for Aberdare (Mr. Probert) and Rhondda, West (Mr. Alec Jones) pointed out, it does not contain a magic formula to solve the whole problem. I hope that as a result of what has been said a working party will be set up. It is clear that fundamentally in South Wales the problem is that of fencing. It is time that the Ministry of Agriculture, in conjunction with the Welsh Office with whom it shares responsibility, with British Railways and the National Coal Board ensured a fencing scheme in all areas. A working party should be set up from which recommendations for such schemes could come.
South Wales has benefited from grants for clearing tips. It is no less important to South Wales people that grants should be made for a combined attack on the problem of fencing. The working party should have wide terms of reference to conquer these problems so that the people of the South Wales valleys may have the same standards of amenity as are enjoyed by those in cities.
People of South Wales will thank the Lord Chancellor and the Law Commission for the work that has been done and for the fact that at long last, despite the complexity of the matter and the inevitable provocation that a Bill of this kind must bring about, we have a Labour Government who have begun to grasp this nettle.

10.42 p.m.

Mr. Bert Hazell: I have very much in mind the suggestion by Mr. Speaker that because of the late hour speeches should be brief.
Before I entered this House I was a full-time trade union officer. One of my duties was not only to deal with accidents arising out of and in the course of employment, but accident cases under the common law. Because of the nature of the membership of my union throughout the rural parts of England and Wales there were many cases of accidents on the roads happening on dark mornings when men were cycling to work and a sheep or bullock strayed across the road. I cannot recall any occasion when I was successful in securing damages for members who in some instances have been severely injured as a consequence of that type of accident.
I hope that this Bill, which has received fairly general welcome by the House, will enable claims in instances of that sort to succeed in the courts. I have grave doubts as to the Bill's practical interpretation, but I speak as an ordinary trade union officer who is not versed in the law as are some of my learned colleagues on either side of the House. I gathered from the speeches which have been made that the Bill was one which the ordinary layman could understand, but I confess that I do not understand all the meanings of the provisions in various Clauses.
I foresee difficulties arising in obtaining damages for injury caused by accidents

involving sheep. How can an ordinary person know who owns the sheep in the moorland areas of North Yorkshire or the Pennines? Only the farmer knows the markings on his sheep. At certain times of the year those markings are almost indistinguishable. If the owner of a sheep can be traced, a plaintiff might succeed. My intimate knowledge of the area gained over the past 30 years convinces me that it will be almost as difficult under the Bill to establish a claim for damages arising from injury through running into a sheep as it has been hitherto.
I have listened with great interest to the speeches made by my hon. Friends from South Wales. They expect much of the Bill. I hope that their hopes are justified. There is nothing in the Bill providing that areas which never have been fenced shall be fenced. I do not see how sheep can be stopped from coming down from the hills and wandering through the valleys of South Wales. I would not like to live in the villages with that nuisance always obtaining. I see nothing in the Bill to prevent that from happening, but it may well be that the legal phraseology conceals something which may have this effect.
I know the Pennine district well. It is a wall district. The walls are, in the main, relatively well maintained, but I have yet to see the wall that will stop a sheep which is determined to get over it. So even in a walled area the nuisance cannot be stopped. I do not believe that the Bill will stop it. If it helps people to obtain damages, it will be a good Bill, but as practical people we should not expect too much of the Bill.
My home county is Norfolk and I represent a constituency in Norfolk. In past years we were proud of our high hedges. They helped to prevent stock from straying on to highways. What will the position be under the Bill? Many miles of roadside hedges have been uprooted in the past decade. Nothing has been put in their place. An animal can escape from a home pasture and wander for miles on the roads. It will be difficult to discover the owner of an animal which has strayed for miles on the highway and caused someone's death. Will Norfolk farmers be ordered to reinstate the hedges they have uprooted over the past 10 years? In some respects I hope


this happens, because I think that they have desecrated much of Norfolk without gaining anything for themselves. If the Bill helps to restore roadside hedges in Norfolk, thus increasing safety, I give it a double welcome, but I have my doubts about this aspect, too.
In recent years local authorities have been very good in the matter of erecting signs warning the general public that sheep and other animals are liable to cross roads running through moorland and commons. The hon. Member for Scarborough and Whitby (Mr. Michael Shaw) will have experience of this near his constituency. However, many people ignore the warning signs. Although local authorities have recognised their responsibility, more could be done in this regard.
Clause 9 relates to dogs. They have become a nuisance in the countryside. They are destructive once they begin to go wild. It is natural that a dog that has been confined, perhaps on a housing estate, should want to chase other animals on suddenly gaining its freedom and finding hens, ducks and so on. Only this week in Norfolk an instance was reported of many hundreds of ducks being killed by one dog.
Some local authorities have not helped. I call to mind very vividly a new estate on the outskirts of Leeds where the planning authority has made a condition that there must be no fence of any sort erected around any of the houses. The estate is completely open to the countryside. If one is prevented from even planting a privet hedge, then at certain times of the year when a dog is let out the owner cannot stop it, even with the best will in the world. It is gone, and straight into the open country. This has not helped to solve some of the difficulties of the farming fraternity, but has created more difficulties.
I do not believe that the owners of any of these dogs want to see them doing damage. But there are times when, because of the type of estates being built, it is almost impossible to keep a dog within the confines of the house, without even a garden to roam.
These are some of the practical difficulties we must face, and they will be some of the practical difficulties the law will have to determine when cases are

brought. I hope that it will be possible to bring them to a satisfactory conclusion for those who are injured or for the relatives of those who lose their lives on the highway through straying cattle and the like. I hope that the Bill will give us what most of us would seek to have, but I have some very grave doubts when it comes to an issue of interpretation.

10.53 p.m.

Mr. Edwin Brooks: I am very grateful to have an opportunity to intervene in the debate, because until my hon. Friend the Member for Norfolk, North (Mr. Hazen) spoke, speaking as usual from his deep experience of agricultural and rural matters, I began to wonder whether the House had resolved itself into a meeting of the Welsh Grand Committee. I say this without malice, because I am a Welshman, and the Welsh have no malice within them, as the House knows. But there has been a certain obsession with the problems which plague my hon. Friends. I am well aware of these problems, having grown up in that area.
It would be a mistake if we gained the impression that the Bill is solely concerned with those specific problems. We are dealing with two substantive legislative proposals, one relating to the Bill and one on which my right hon. and learned Friend the Solicitor-General concentrated during much of his speech—the proposal involving the Law Commission's report.
The hour is late and it would be wrong of me, particularly as one who is not qualified in the law, to comment at any length on matters which have already been discussed exhaustively in relation to the Law Commission. But I am bound to refer to one comment made by the hon. and learned Member for Montgomery (Mr. Hooson) in a very necessary speech. I think that he said that precisely because the Bill had been so badly drafted it was all the more important that the Law Commission's report should always be consulted about its interpretation. But I think that it was the Law Commission that drafted the Bill; proposals which are still largely those before the House were put forward by the Law Commission. It is rather extraordinary that a body apparently capable of drafting a Bill so badly as the hon. and learned Gentleman claims


should invariably be consulted, and explicitly defined for this purpose.
There is a principle here which must be ventilated, if only in passing. If we do not mention it I am sure that this will be used as a precedent. It will be said that it was done with this Measure and that we cannot have exceptions in future. The Law Commission has, in effect, prepared a Bill for the House and I do not like the concept of the Law Commission producing Bills which we are expected to rubber stamp.

The Solicitor-General: The Solicitor-General indicated dissent.

Mr. Brooks: I am sure that my right hon. and learned Friend, who is shaking his head, does not agree with that criticism, but if there is an inference that there will be no major Amendments to the Bill in this House, surely we are, in effect, saying that the Law Commission is so brilliant in these matters that it can do no wrong and that it alone must be identified in this way. This must be gone into in Committee and I hope that the more general issue will be gone into on the Floor of the House at a better hour than this at a later stage. If the Government felt it desirable to intrude such a provision as Clause 11(2) into the Bill, it would have been better to have done it on Report stage, when the Government would have seen how far the Committee had altered the original proposals of the Law Commission.
The debate has ranged widely. We have all learned a great deal of value. Like my right hon. and learned Friend, I have learned what a hinny is. I thought originally that it was a misprint of "ninny", a synonym for ass, but it is the converse of a mule. Perhaps it is a matter of whether one's mother or father was an ass. We are discussing in tremendous detail a species which none of us even understands. My right hon. and learned Friend did not even know what it was. I do not know how many hinnies there are in England or in the valleys of Wales.

Sir B. Janner: Try the Geordies.

Mr. Brooks: My hon. Friend seems to suggest that the Geordies know about it. These are dark secrets to most of us.
But the object of the Bill, aside from these details, is generally to codify prac-

tice in the way we assess liability for damage caused by animals. Running throughout the Bill is the difficulty or inability to ensure peaceful co-existence between motor cars and animals. We have imposed a general liability upon all car owners in that they have to have compulsory third party insurance. I think there is some point in trying to approach the ownership of animals in the same way, but there are problems and I am not persuaded by what were, for once, the rather facile arguments of the hon. Member for Ormskirk (Sir D. Glover). There are real problems, particularly in dealing with the upland areas.
As I have said, the hon. and learned Member for Montgomery made an important and necessary speech. I think that, because I too have many doubts about the Bill and they have been reinforced further by the speech of my hon. Friend the Member for Norfolk, North. Clause 2(2) says:
Where damage of any kind is caused by an animal which does not belong to a dangerous species, and—
(a) the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind …
What does "of that kind "refer to? This point was discussed at length in the House of Lords. The words "of that kind "clearly refer back to "damage of any kind", which phrase seems to leave nothing out.
I have an interest in the problems of conservation of the otter. No doubt otter hounds do a great deal of damage to river banks—more, indeed, in one afternoon than is caused in a whole year by erosion or flood. Is what the Government have in mind damage of any kind caused by any animal and not just livestock? But if the animal, for example a wild deer, is not owned by anyone, damage presumably cannot be measured. It is a meaningless concept.
This is a case where the home-spun language of this legislation will cause the greatest difficulty in future. When I first came to this House, I thought all our laws should be simplified. I am beginning to feel that there is good reason why they should be expressed in scrupulously careful legal language.
I want to deal with the problem of the dog, particularly the dog in the town. We have heard a great deal tonight about


cattle wandering in the hills, but we tend to forget that a very large number of accidents are caused by dogs in our congested towns. There are problems arising which we shall have to consider in Committee. We shall have to explore the implications, for example, of fencing on council estates and the liability of a dog owner living on such an estate who allows his dog to get out and cause an accident to a motor vehicle.
For many years, we have permitted dog owners to keep their animals too cheaply. We all know the problem which arises after Christmas, when masses of dogs have to be destroyed by the R.S.P.C.A. I have felt for a long time that the licence fee should be increased, and made payable at time of purchase, with a view to stopping this foolish and happy-go-lucky attitude to the keeping of animals. Moreover, I see no reason why the licence fee should not be increased by an amount corresponding to what would be the premium on an insurance policy, so that a person buying a dog licence automatically insured himself for the damage which his dog might cause.
However, my original purpose in intervening in the debate was to raise a matter which so far has not been touched upon but which is relevant to the Bill. There are two areas where clearly some obligation is being placed upon animal owners: first, to ensure that animals do not cause damage by trespass; and second, to ensure that they do not cause any direct injury to someone. Obviously, these are principles which the House will endorse.
For some time, I have been concerned about the way in which, in this age of fast motor vehicles and electrified trains, we still not only permit but sometimes actively encourage the movement in full cry of large numbers of potentially fierce animals across the country chasing the sort of animal referred to by my hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins). What would have happened, I ask myself, it the fox which jumped over the hedge had been followed by 50 or 60 hounds in full cry?
I have quite a large selection of incidents recorded for the year 1965–66 involving packs of hounds crossing highways, aerodromes and railways. I had

some correspondence with my hon. Friend the Parliamentary Secretary to the Ministry of Transport about them. In a letter dated 17th July, he said:
…it is also unlikely that hounds would present much risk to trains.
In a later letter to me, Sir Henry Johnson said:
It is not possible to identify in our records cases of trespass by followers of hounds—we have no recollection of instituting proceedings in such cases in recent years.
That may sound comforting, but the Daily Telegraph carried this new item on 6th January:
Hounds on line delay trains: Hunts were told by British Rail yesterday that their actions could cause a serious railway accident, after a train killed two foxhounds. The hounds, belonging to the Llangeinor Hunt in Glamorgan, ran into the path of a tanker train on the Cardiff to Swansea line during the weekend while chasing a fox at Brynna. The driver made an emergency stop. A British rail spokesman said: 'It is sheer madness for hunts to allow hounds to go near the railway track … because serious accidents could occur'.
My point is that if we are to codify the law relating to negligence or damage caused by animals on the public highway, this at least is one matter which we should consider seriously.
My final point arises from the problem of defining "livestock". The right hon. and learned Member for Huntingdonshire (Sir D. Renton) referred to Clause 8 as if it applied to livestock. No doubt that was a slip, and he meant to say "animals".

Sir D. Renton: I think that I said that it referred to cattle, sheep, horses and dogs.

Mr. Brooks: Clause 8 is simply headed,
Animals straying on to highway.
I imagine that it could be termites on the march. They are animals. There is no limitation whatever. I think that the right hon. and learned Gentleman will have to agree with that. This is indeed the background to the point raised by my hon. Friend the Member for Brecon and Radnor when he referred to the fox. It applies to badgers, stoats, weasels—the lot.
Throughout the Bill there is a certain ambiguity. It refers to animals—presumably including wild animals and livestock. If so, what specifically are


livestock? Livestock includes asses, mules and hinnies. It also includes a number of other categories which nobody would dispute. But what is the logic? Are livestock animals kept for breeding purposes or commercial purposes? Are they in the ownership of people, or what? If those are the criteria, I think that livestock should properly include the kennels where dogs are bred for sale or other places where pedigree animals are bred for sale.
The relevance of this to my point about field sports is that there have been cases in recent years—and I have documentation for recent months which I have collected—where pet animals, such as dogs, cats, and, in one case which went to court, a pet lamb, have been killed by a pack of hounds in full cry on the property of the person, sometimes a child, who owned that pet animal. It seems extraordinary that we should bring in protection for some old he-goat and not apparently bring in any general rule to protect animals owned and treasured by literally millions of people in this country. Pet animals seem not to be mentioned. Some hon. Gentlemen seem to regard pets as not being animals.
There is a case for a more general application of the concept of livestock which would at least include those animals which are, and can be seen to be, in the ownership of individuals. There may be other ways of approaching it, but these are matters properly to be gone into in detail in Committee.

11.8 p.m.

Mr. Clifford Williams: I apologise for rising at this late hour, but I have been in the House from the inception of the debate and I want to make a short contribution, from a mining constituency in which there are a number of hill farmers. I listened with great attention to the opening remarks of my right hon. and learned Friend the Solicitor-General about the law. He said that the law was uncertain—that cattle could eat somebody's cabbages and the owner had to prove that his land was fenced before he could claim compensation for the damage done by the cattle.
There seems to be an expression of opinion on both sides of the House that the question of straying animals has

been too long delayed. The subject has been raised and debated many times, and there have been fierce arguments on both sides. The Bill attempts to do two things: first, to prevent the terrible number of accidents that occur throughout the country due to straying animals; and, secondly, to prevent the damage that is done to the garden of the owner of a little cottage in a Welsh mining village who is an assiduous, joyful gardener.
I shall not develop that theory to any extent, but it is tragic indeed that after people have received tremendous pleasure and joy from cultivating their gardens throughout the season—and I have hundreds of cases of this on record—they wake up one morning to find them devastated by straying animals.
My hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins) referred to the instincts of sheep, and told us how they travelled around trying to find the place where their ancestors pastured. My hon. Friend ought to come to the Welsh valleys, where he will find, not only that the sheep follow their instincts, but that they have great jumping propensities. People who have put up 4 ft. and 5 ft. high fences have found them to be of little use. The sheep simply leap over the fences and devastate the gardens beyond. I often wonder whether some of our national hunt trainers—and we have some very good ones—could take a lesson from the way in which these sheep beat the fences, and incorporate it into the training of their horses.
I do not want to be too jocular about the subject under discussion, because we have been plagued by this problem for many years. From time to time the local authorities in my area have met the local hill farmers, and in some cases they have taken joint action to try to stop animals being the cause of accidents on the roads, and to try to stop them devastating people's gardens, but in other areas no action at all has been taken.
The Bill is a step in the right direction, and I support the suggestion for the setting up of a working party. We are all concerned about the losses suffered by farmers, about the accident rate on the roads, and about the devastation that takes place when straying sheep jump garden fences. For all those reasons. I support this Measure.

11.15 p.m.

Mr. Michael Jopling: It is with some diffidence as a non-lawyer that I wind up the debate on behalf of hon. Members on this side of the House. When I first read the Bill I was pleasantly surprised at coming into what I thought was a legal matter—to the extent that I thought I understood it—but when I listened to some of the speeches, especially that of the right hon. and learned Gentleman the Attorney-General, on Clause 11(2), I began to realise that I was about as much at sea on those legal matters as I ever thought I would be.
I am disappointed that we do not have an agricultural Minister to wind up the debate; it would have been very helpful to have had the views of the Ministry of Agriculture on this point. In that connection, I hope that the Solicitor-General will be able to assure us that an agricultural Minister will be on the Committee. It will be of the greatest assistance if he is, and we shall get into a terrible muddle if he is not.
I want, first, to refer to Clause 4, which deals with liability for damage and the expenses involved in trespassing livestock. I imagine that that Clause will be of the greatest help to the "South Wales lobby", because under it compensation can be claimed if sheep come down and eat all the cabbages and roses, and the rest of the things in the garden.

Mr. G. Elfed Davies: I do not want to introduce a note of jocularity into the debate, but I should like to tell hon. Members what happened to me earlier tonight. Just before the debate began I was speaking to my wife on the telephone. I said, "In a few minutes we shall start a debate on the Animals Bill, dealing with the problem of straying sheep". She said, "For heaven's sake get it through quickly; there are two in our garden now".

Mr. Jopling: The hon. Member is lucky; I have not had a chance to talk to my wife tonight.
Clause 4 will give some redress to people who suffer in this way. I hope that it will also help people—especially those in my constituency and other similar ones who, during the summer, have gipsy horse fairs to contend with. In my constituency one is held at Appleby. It is quaint and picturesque, and people come

from all over the world to see it, but there is an extremely unpleasant side to it. Farmers who live around the area when the fair is held and have fields adjoining the roads where all the caravans are parked suffer the most appalling damage and trouble during the week or 10 days of the fair.
One of my constituents who has a farm close to this fair last year had damage valued by a professional valuer at over £700 through the ruination of meadows, broken gates and hedges, and other damaged property. Parts of Appleby are something like Dodge City when the Appleby Fair is on. I hope that Clause 4 will help some of my constituents to obtain proper redress, although I can imagine that in spite of the Bill there may be some trouble in getting compensation.
Like my hon. Friend, I understand some of the reasoning behind the contentious Clause 8, and I do not argue with it. What would be the effect on a bee keeper living near a road if one of his bees got out of the hive and stung someone driving along the road? I should have thought that, under Clause 8, if the owner of the bee could be identified, he would be liable.
There have been arguments about the effect of the Clause on farmers with unfenced land adjacent to a highway. I am slightly reassured by some of the remarks of my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), but I am still generally worried. I share the worries of the National Farmers' Union and the hon. Member for Brecon and Radnor (Mr. Tudor Watkins). Will these farmers be exempt from this liability? In the Lake District, for example, it is impossible for the motorist to tell common from non-common land. This differential is likely to create great unfairness which is illogical and hard to understand.
We are told that certain matters in subsection (2) must be taken into account in determining whether there has been a breach of the duty to take care. The most important, for these vast unfenced areas, is paragraph (e), which deals with the extent to which fencing is the normal practice in the area concerned. It is suggested that this will allow farmers in areas where land is not fenced to escape any liability, but I am not happy about this.
If a bus overturned after hitting a sheep and 30 people were killed, a vast claim might be made. The barrister for the plaintiffs would argue about whether fencing was the normal practice in the area. I know of no area where it is the normal practice to have no fencing at all. In the Lake District and on the North Yorkshire moors, great lengths of highway are unfenced, but one need not go far to find land which is fenced. The barrister could say that, although this piece of land was not fenced, it was the normal practice in the area to fence as well. Fencing is intermittent in these areas and it is impossible to say that it is normal to have none at all. So in virtually all cases the farmer is liable to breach the duty to take care, and I am very bothered about this.
I return to the exemption at the end of Clause 8 with regard to common land and village greens. Why has that exemption been inserted? I suspect that the reason is that commoners are not allowed to fence their common land. I think that that was the explanation given by the Lord Chancellor in another place. It seems to me, therefore, that one of the purposes of the Bill, and Clause 8 in particular, is to induce farmers to fence their land. If I followed the debate aright, this is the reason why so many hon. Members from South Wales have given the Clause such a warm welcome, seeing in it a means of forcing farmers to fence their land.
What do the Government intend as regards common land? If commons are exempted because the commoners are not allowed by law to fence them, what is intended for the second stage of commons legislation, now that the commons registers have been closed within the last few months? Do the Government intend in that legislation in the next year or so to bring common land within the ambit of this Bill? That is a sinister thought, and we should like to know.

Mr. Abse: Why is it a sinister prospect that we should have a harmonising between registered commons and land which has become common land so that we have it clearly defined in relation to the Bill? I do not understand why there should be anything sinister in that.

Mr. Jopling: I have been making the case that it is wrong and unfair to make farmers liable to blame and damages for accidents occurring on unfenced roads in rural areas. I am pleased that commons are exempted, but what I regard as sinister is that the exemption may have been put into the Bill as a short-term policy until such time as commons are brought in under the second stage of the commons legislation which can shortly be expected.
I believe that the basic intention of the Bill is to force farmers to fence their land against highways in those vast areas where it is not fenced now. What will happen? There are three possibilities. First, farmers may feel that they ought to fence. The cost will be impossible. My right hon. and learned Friend gave a figure of £800 a mile. Enormous areas are affected. I have heard from the agent to the National Trust in the Lake District that there are 5,000 acres of grazing land coming under this head which would involve 25 miles of fencing.
The economics of hill farming do not allow for expenditure on that scale. Hill farming has become only marginally economic. It has probably suffered more than any other branch of farming in recent years, and the fall in sheep numbers is clear testimony to the way the present Government have lowered the profitability of hill farming.
Moreover, this would be a very unwelcome development in areas such as the Lake District and, I suspect, many areas of Wales. Beautiful parts of the country would be materially harmed if through the unfenced areas we were to have concrete posts and wire fences erected so that animals could not get on to the road. It would be a great setback to the most beautiful Darts of our country, and I hope that the Government will take that matter also into account in Committee.
The next problem is that of insurance. It is almost impossible to assess the cost of insurance. My hon. Friend the Member for Ormskirk (Sir D. Glover) said that he thought there would be a small premium of about £2. All I can do is to repeat what the National Farmers' Union said about it:
The Union, having made such inquiries as are possible of expert insurers in this field,


feels convinced that as soon as case evidence is built up, if not earlier, there is bound to be a substantial increase in the premiums for such insurance due to Clause 8.
Already many farmers are unable to get proper insurance cover.
The union also says that it
is already aware of cases where farmers in hill farming areas have been unable to obtain insurance cover in respect of death and injury to their animals in road accidents".
The effect of Clause 8 on insurance is likely to be harsh.
Those are the first two possibilities—to insure or to fence. There is one other possibility—that farmers will have to give up their grazings. Already, with low profits, many of them are tempted to do that. It would be a tragedy for the economy of the country and for our rural areas, which can ill afford to have grazings unused.
If the Government say, as has been hinted, that they have taken care of the point of view of the N.F.U., I urge them to do it in the Bill. I hope that they will not continue to do it in such vague terms as appear in the Bill. If the Government believe that they have taken care of that argument, I ask them not to leave it to some farmer to have all the expense and worry of fighting a test case through the courts up to the House of Lords. I hope that the Government will make quite clear in the Bill what is meant, and I hope that in Committee we shall be able tc persuade them to alter the Bill in that way.
As my right hon. and learned Friend said, we give the Bill otherwise a general welcome. But I am sure that in Committee there will be some sturdy battles, and that we may have some rather unholy alliances between the two sides of the House. I hope that we shall be able to change these rather obnoxious features, particularly those in Clause 8.

11.33 p.m.

The Solicitor-General: I take note of the point made by the hon. Member for Westmorland (Mr. Jopling) that he thinks that another Ministry should be represented in summing up the debate on this occasion. I see that there might be something to be said for that. Moreover, I will transmit his concern about the composition of the Committee to those involved.
The hon. Member asked me a question about bees. I need notice of it. Whether a bee is an animal straying on the highway when it crosses a highway is a point deserving of consideration, and it will receive consideration. But I shall not be tempted into giving conclusive answers tonight on difficult points such as that, any more than I shall put forward prognostications about additional legislation, shortly to be forthcoming, about the treatment of commons.
It has been an interesting debate and, although I do not want to detain the House long at this late hour, I turn, first, to the questions put to me by the right hon. and learned Member for Huntingdonshire (Sir D. Renton). He asked whether the effect of Clause 8(2)(e) was that if a defendant could establish that it was normal practice not to fence, he would not be expected to fence.
I do not think that he could expect from me an unqualified answer to that question. That, again, would be quite unwise. What the Bill provides is quite explicit. It does not set out an expression analogous to that which was put to me by the right hon. and learned Gentleman. What it does is to include this matter of the normal practice in the area as one of the matters to which the court must have regard. He and I know that that statutory language will carry immense weight, but, likewise, he and I appreciate that it is not conclusive. It remains a matter to which regard must be had, and it is obviously an important matter.
The right hon. and learned Gentleman asked about the burden of proof, with particular references to the paragraphs in Clause 8(2). To oblige him, I will express a view about that. But, of course, it is a matter which may come to be argued before the judges, and it is possible that the point may be made clearer in our consideration in Committee. My own view—as he has asked me—would be that it would remain a burden upon the plaintiff to establish the matters in these paragraphs, because they are simply aspects of the duty to care, and a breach of that duty; and, as the overall burden of proof of a breach of a duty to take care will, as I conceive it, be upon the plaintiff, likewise the burden of proof of these ancillary parts of the total duty will be upon the plaintiff. That would be my understanding of the


provision as it is at present formulated. But, as I have said, there must not be anything conclusive about an expression of opinion which I offer in this debate.
I thank my hon. Friend the Member for Aberdare (Mr. Probert), in his absence, for his welcome to the Bill. He was concerned, as so many other speakers have been, about the cost of providing fencings and, of course, that is a matter which must obviously be weighed. He expressed a desire that there should be a working party to go into the wider issues raised by liability for straying, and that proposal received such widespread support among hon. Members that one could not possibly disregard it. I shall draw the attention of those concerned to the importance that is attached to that matter.
My hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins) referred to that aspect of the matter. He raised the question of the possibly favourable position that Government Departments would be in, where the Ministry of Defence, for example, was receiving substantial sums to keep up fencing and could in this regard be compared rather controversially with other owners of land. To that matter, I will give due attention.
The hon. Member for Scarborough and Whitby (Mr. Michael Shaw) referred to the point of the burden of proof, a matter with which I have dealt. My hon. Friend the Member for Leicester, North-West (Sir B. Janner) reminded us that on several occasions he had put forward the proposals contained in Clause 8. I hope that he will find satisfaction in the eventual achievement, in the Bill, of his purpose. My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) was among those who referred to the desirability of a working party, a point with which I have dealt.
The hon. and learned Member for Montgomery (Mr. Hooson) was uncertain whether Clause 8 would be effective to deal with the case of Searle v. Wallbank. We can consider the matter in Committee. I am inclined to reject the hon. and learned Gentleman's criticism of the drafting of Clauses 2 and 5, but that, too, we can take up in Committee.
My hon. Friend the Member for Pontypool (Mr. Abse) wanted to know the pur-

pose of the latter part of Clause 8 in respect of the treatment of commons. I thought that he was right when he said that there was a variety of sets of circumstances in which animals might be grazing on common land. As I see it, Clause 8 exempts owners of animals on commons where the only negligent act is failure to keep them from straying. That does not exclude the possibility of liability where there are additional circumstances; as, for example, where a defendant, having assumed control of an animal, then causes it negligently to run on to the highway. To be fair about this, one must give a qualified answer, but I hope that what I have said meets the case which my hon. Friend raised.
My hon. Friend the Member for Norfolk, North (Mr. Hazell) had doubts about the effectiveness of Clause 8, which I regret, and perhaps we can strengthen the Clause in Committee. We will be attentive to that possibility.
My hon. Friend the Member for Bebington (Mr. Brooks) touched on Clause 11(2), but I think that we dealt sufficiently with that great issue at the beginning of the debate. He also drew attention to the relevance of hounds engaged in field sports, which is another matter that deserves attention.
My hon. Friend the Member for Abertillery (Mr. Clifford Williams) welcomed the Bill, and I was glad of that.
I am happy to think that on the whole the Bill has had a friendly reception. I recognise that Clause 8 is a source of some difference of opinion, and I am aware that Clause 11(2) has still not entirely won the support of the House. None the less, both of these matters, and others, have been usefully ventilated in an extraordinarily useful debate.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

EDUCATION (SCHOOL MILK) BILL

Ordered,
That Standing Committee C be discharged from considering the Education (School Milk) Bill.
That the Bill be committed to a Committee of the whole House.—[Mr. McNamara.]

Committee Tomorrow.

Orders of the Day — DROITWICH BRINE BATHS

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Walter Harrison.]

11.46 p.m.

Mr. Peter Walker: I am grateful to the Joint Under-Secretary of State for the Department of Health and Social Security for attending this debate. I apologise that stray sheep have kept us until this late hour.
The subject I wish to raise is the future of the brine baths at Droitwich. These baths have been in existence since the latter part of the 19th century, and in recent years have contributed very considerably to the treatment of patients suffering from arthritis and from difficulties with limb movements following major operations. The brine baths are used by the neighbouring Highfield Hospital, and a very considerable number of National Health Service patients have over recent years used the facilities offered.
A few years ago, much to the shock of those involved in this project, it was announced that in future the hospital service would not be using the brine baths at Droitwich. I want at once to express my gratitude to the Under-Secretary's predecessor, the hon. Gentleman the Member for Lichfield and Tamworth (Mr. Snow), for the interest he has taken in this matter and the manner in which he tried to assist in seeing that if closure was not prevented it was at least delayed.
I want, in particular, to refer to the letter I received from the then Parliamentary Secretary, when I complained to him about the announcements that the brine baths were to be closed. After referring to examination of the case and of the facts that he had discovered about the position, he stated:
It may be helpful if I first set down some points on which there is no dispute about the facts. I accept that, whereas the number of physiotherapy treatments given yearly at St. Andrew's Baths has fallen in recent years, the number of patients actually treated each year has remained fairly constant. It seems that treatment of rheumatic diseases generally is more effective and that hydrotherapy in particular is being used less for each patient but more effectively, so that there are fewer re-attendances. I also accept that the buoyancy of the brine enables a physiotherapist to supervise more patients than would be possible without other support in fresh water.

The letter concludes:
I am glad to know that the Droitwich Medical Trust"—
and it is the Droitwich Medical Trust which manages the brine baths—
are ready to co-operate in every possible way in the interests of the patients, including placing their expert knowledge, and rights in the brine, at the disposal of the Hospital Board. I would suggest that the next step is discussion between the Trust and the Board which, I hope, will be fruitful.
The letter from the hon. Gentleman clearly indicated that after detailed inquiries by the Ministry it recognised that the brine baths were serving a very useful purpose and there was a real case. The facts which he conceded were facts put up against all the contentions and arguments propounded by the regional hospital board. The board has produced figures to show that the number of treatments was declining and it consistently argued that the use of the brine itself was of no great importance. What concerns me about this case is that basically now the decision of the hospital board is to install at the nearby Highfield Hospital facilities for treatment but with ordinary water and not with brine.
The board argues that on medical advice the brine itself has no direct medical advantage and that there are additional costs in using brine. Therefore, the board intends to create a new section at Highfield Hospital which will not use brine but fresh-water for this type of treatment.
This strikes me as an incredibly narrow and distorted view of the situation because, although there may be no direct medical advantage in using the brine itself, anyone who visits these baths will see the incredible advantage of brine in providing the treatment involved. If brine is not used, the patient is always conscious of the possibility of not remaining afloat while the treatment takes place and has to be supported while it takes place. Therefore, there is a tremendous increase in the number of staff involved.
Recently, in a television programme on this subject, I was able to demonstrate to the public at large groups of patients going through the treatment taken by skilled physiotherapists with half a dozen patients being treated at one time, whereas if brine is not used each patient has to be treated individually and considerably more staff are necessary. In a brine


bath the patient cannot sink and this means that exercises which have to be carried out are carried out with far greater confidence and far more success. The whole of the medical staff involved at Highfield Hospital is completely unanimous in saying that brine is of considerable advantage in the treatment of patients.
The right course for the regional hospital board was to continue treatment at the brine baths, but, nevertheless, it has decided to create a new wing at the hospital at considerable expense. Then came an offer from the medical trust and local people that if Highfield Hospital was to use a wing of its own rather than the brine baths that hospital wing should have brine rather than ordinary water. This was rejected by the board in a remarkable way. First, it suggested that there would be an additional capital cost of £14,000. It was discovered on examination that the capital cost included the cost of providing pumps and pumping which could have been provided by the medical trust itself and, therefore, the capital cost suggested was not a reasonable figure. The board suggested that because the brine had adverse effects in terms of corrosion and there would be an additional cost of piping maintenance.
Droitwich is a small town which is noted for its charitable support and particularly for its support of hospitals. The Friends of Droitwich Hospital offered themselves to meet the entire cost of additional maintenance which would be required by providing the brine. This offer was rejected in a most remarkable way by the regional board. Having first refused the offer of an additional figure for maintenance, the board put forward a figure of £100, then £500 and then £770 and at these levels the Friends of Droitwich Hospital was still willing to meet the entire cost and to ensure that no cost fell on the public.
This was refused. One of the main reasons given was that plans were going ahead on the basis of using ordinary water and the whole thing should not be further delayed. This proved a completely bogus excuse, because not one brick of the new wing has been provided and not even the land has been acquired. So there is no slowing down of the project if the hospital board would

only decide to use brine instead of ordinary water.
The Medical Trust is a charitable trust. It knows full well that immense advantage of brine to the patient. The people of Droitwich know this advantage. They are willing to make considerable contributions to ensure that National Health patients and ordinary patients can continue to obtain the benefit of this type of treatment. It has been a story of incredible frustration to the medical staff, to local people in Droitwich, and to the very dedicated people that work at the brine baths, to receive absolutely no encouragement or word of support from the regional hospital board. There has been a blank wall—"In our view, there is no medical advantage in brine". In propounding that view the board goes against all the feelings of the medical staff and the patients involved.
I sent in a petition, signed by a very large number of patients and former patients, pleading with the Minister to intervene to ensure the brine treatment can continue. These are the only brine baths in the United Kingdom. This is now the only place where treatment in brine can continue. I believe that it will be a very real tragedy if the regional hospital board does not take a much more enlightened view of this matter and make decisions which will ensure at least that this hospital treatment by brine can continue, to the benefit of patients and in accordance with the beliefs of the medical staff.
I hope that the Under-Secretary will be able to cause the regional hospital board to re-examine this position yet again and enable the brine treatment to continue.

11.56 p.m.

The Joint Under-Secretary of State for the Department of Health and Social Security (Dr. John Dunwoody): I welcome the opportunity which the hon. Member for Worcester (Mr. Peter Walker) has provided for the discussion of a complex and important subject. It is a matter of considerable concern, not only locally, but elsewhere since the Droitwich brine baths have provided a service that has been appreciated and valued far afield.
Indeed, I want to pay a tribute to the work done by the Droitwich Medical


Trust and its staff at the St. Andrew's baths. I know from the large number of letters my Department has received that people in Droitwich and in many other parts of the country greatly value the treatment they have received there over the years, and there is no question of the arrangements at St. Andrew's baths being brought to an end before satisfactory alternative provision is made elsewhere.
I think that, to explain the developments which call for ending the contractual arrangements with St. Andrew's Hospital, it would help if I set this particular case in a wider perspective and to do this I need to go back a few years. The original connection between the National Health Service and the Droitwich Medical Trust consisted in an arrangement between the Birmingham Regional Hospital Board and the Trust to provide physiotherapy and hydrotherapy for Health Service patients referred to hospitals in Droitwich for treatment.
These arrangements carried on, the board paying an annual lump sum to the Trust for the treatment given, until the summer of 1966, when the Trust approached the board and explained that the arrangements could not go on in the present fashion since with the decrease in the number of treatments under the Health Service the Trust's financial position was becoming difficult.
The number of units of treatment at the baths had gone down from 42,816 in the financial year 1963–64 to 24,068 in 1968–69, a decrease of 43 per cent. I do not have exact figures for the number of patients treated, but my understanding is that it has not decreased as much, for, amongst other reasons, the reason that the hon. Member mentioned. The board and the Trust held consultations about the solution to the problem and the upshot was that, as the Trust could not continue to treat Health Service patients under the present arrangements, the hoard decided that it would have to end the contractual arrangement with the Trust and make alternative arrangements for the treatment of its patients.
In addition to the very heavy costs of keeping the brine baths running, there are some very heavy recurring expenditures involved in the frequent restoring of plant, because of the corrosive effects of brine and the problems of piping it

to and from the baths. The board decided that it could not assume the heavy financial liabilities of the Trust. I must make it abundantly clear that the initiative for ending the arrangement for the treatment of Health Service patients at St. Andrew's Hospital came from the Trust and not from the regional hospital board.
Faced with the decision of making the best provision for its patients the hospital board decided to build an out-patient department at Highfield Hospital at Droitwich and to include, at the same time, the construction of a hydrotherapy pool. It was under considerable pressure from local interests to have brine from St. Andrew's baths in this pool. The greater buoyancy which brine provides is an advantage, but there is, of course, the disadvantage that the brine is irritating to the eyes, and great care has to be taken to avoid splashing.
Consultants involved in the rehabilitation procedures recognise that the small hydrotherapy pool is useful for selected patients and regularly refer them for this form of treatment. Nevertheless, the real need for hydrotherapy in a large hospital is relatively small and there are various techniques which can achieve the buoyancy required by the individual patient in a normal hydrotherapy pool.
The buoyancy and warmth of ordinary water at body temperature provide a useful medium for the re-education of function in many muscular and locomoto disorders and particularly in the conservative and post-operative treatment of arthritis of the spine, hips and shoulders in older patients. Modern hydrotherapy pools are used to re-educate patients in walking because the amount of weight-hearing can be graded according to the depth of water in which the patient is walking.
They are also used to mobilise individual joints while the trunk and limbs are supported by floats made of terylene slings with plastic foam material at either end. These buoyancy aids are quickly and easily slipped into position and do not hinder movement to any significant extent. The resistance due to moving the floats through the water provides an exercise for the muscles acting on the joints.
Although brine baths are quoted as having psychological effects, other than


the physical properties of the increased buoyancy there is no clinical evidence that in itself brine has any therapeutic value whatever. I am sure that the larger number of patients treated in the brine bath at Droitwich is due to the fact that doctors tend to prescribe, and patients expect, treatment in the unique brine bath, whereas in other hospitals more comprehensive procedures would be prescribed even though a hydrotherapy pool is available.
The board considered in great detail the feasibility of using brine but decided that the advantage of brine—its greater buoyancy—did not outweigh the very great disadvantages of piping the brine to the pool and then disposing of it. During the course of discussions with the Medical Trust the board's officers had been left in no doubt that the corrosive effect of concentrated brine on almost all materials with which it comes into contact poses virtually insuperable problems.
The disposal of the brine would have involved arrangements for the use of the existing brine drain and settling tanks at St. Andrew's baths from which a controlled release is made into the nearby river. The arrangement is subject to rigorous controls. If St. Andrew's baths ceased to function when the Health Service contract ended, the regional hospital board would be faced with the cost of maintaining the whole disposal system.
The new buildings at Highfield Hospital will provide generally better and more comfortable conditions for both patients and staff that are at present available. The hydrotherapy pool which the board is planning to include will, I am sure, provide facilities which will be superior to those at present used in St. Andrew's in every way except possibly for the size of the pool. Arrangements for the treatment of patients at the hospital will be made in the same way as at any other Health Service hospital.
Health Service patients will be referred by their general practitioners or by consultants at other hospitals to the hospital and private patients will also be admitted through the medical staff. I know that in the past patients have come from far and wide to Droitwich, but many Health

Service hospitals now have hydrotherapy pools comparable to those at the Spas and patients can be treated much nearer to their homes.
The hon. Member mentioned the problems that might arise in stopping treatment in the brine baths at St. Andrew's Hospital. The action of the board in proposing to terminate its contractual arrangements is not in fact an embargo on the continued opening of the brine baths. I recognise with some regret, that the major part of the income of the St. Andrew's Hospital comes from the payments made to it by the regional hospital board for the treatment of Health Service patients, but the Trust cannot expect the hospital board to take over the whole of its existing establishment since part of it has no relevance to hospital interests. I also understand that a considerable amount of money would need to be spent on improvements at St. Andrew's Hospital.
The board is anxious to start work on the construction of the new out-patients' department at Highfield Hospital and the construction of the hydrotherapy pool, but it is at present being delayed by procedural difficulties in acquiring a small portion of land which is needed so as to widen the access gate to the grounds of the new buildings. Once these procedural difficulties have been settled the board hopes to make swift progress with the provision of the new facilities. It has undertaken to give nine months' warning to the Medical Trust before terminating the contractual arrangements. It has also made it abundantly clear to the Trust that the board will be prepared to take over the staff at present employed at St. Andrew's baths if they wish to come to Highfield Hospital.
I think that you, Mr. Deputy Speaker, will agree that there has been nothing sinister in the actions of the regional hospital board in this matter. Patients who require hydrotherapy will continue to be able to receive it either at Highfield Hospital or at a district hospital nearer to their homes.

Question put and agreed to.

Adjourned accordingly at seven minutes past Twelve o'clock.